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Premdas v The State [1979] PNGLR 329 (1 September 1979)

Papua New Guinea Law Reports - 1979

[1979] PNGLR 329 - SCR No 1 of 1979; Ralph Rakhinand Premdas v The State

[1979] PNGLR 329

SC160

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

IN THE MATTER OF SUPREME COURT REFERENCE NO. 1 OF 1979 IN THE MATTER OF A REFERENCE UNDER S. 18 OF THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA AND IN THE MATTER OF RALPH RAKHINAND PREMDAS

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani

Prentice CJ Raine DCJ Saldanha Wilson Andrew JJ

30-31 July 1979

1 August 1979

1 September 1979

IMMIGRATION AND ALIENS - Entry permit - Whether civil right -Revocation of entry permit - Whether principles of national justice applicable to administrative enquiry - Whether s. 61AA of Migration Act 1963 invalid - Whether revocation harsh or unconscionable or unwarranted by circumstances - Migration Act 1963, s. 61AA[ccclxxxvi]¹ - Constitution of the Independent State of Papua New Guinea, s.37(11) and (12)[ccclxxxvii]² ss. 38, 41, 57 (1), 155 and 166.

CONSTITUTIONAL LAW - Constitution of the Independent State of Papua New Guinea - Validity of s. 61AA of Migration Act 1963 - Section prohibiting appeal relating to grant or revocation of entry permit or order for deportation - Section to be read down by provisions of Constitution - Section not preventing jurisdiction where alleged breaches of constitutional rights - Constitution, ss. 57(1), 155 and 166.

CONSTITUTIONAL LAW - Constitution of the Independent State of Papua New Guinea - Civil right - What constitutes - Rights under entry permit granted under Migration Act 1963 - Rights not civil rights - Constitution, s. 37(11) and (12)[ccclxxxviii]³.

CONSTITUTIONAL LAW - Constitution of the Independent State of Papua New Guinea - Proscribed acts - Revocation of aliens entry permit - Not harsh, unconscionable or unwarranted by circumstances - Constitution, s. 41.

The applicant Dr. Premdas an American citizen was a lecturer at the University of Papua New Guinea under a contract which was to run until 1982 and was the holder of a permit to enter and remain in Papua New Guinea during his employment, which permit was issued under the Migration Act 1963. Having been requested by the Minister for Primary Industry (a former pupil) to assist with the running of his Department the applicant attended at the Department from time to time and assisted in the running of the Department. After complaints from the Secretary of the Department concerning the attendance at and interference in the running of the Department, the Prime Minister twice requested by letter to the Minister that the applicant remove himself from departmental activities.

Thereafter the Minister for Foreign Affairs and Trade made an order under s. 7(1)(A) of the Migration Act 1963 revoking the applicant’s permit to enter Papua New Guinea. The applicant then applied under s. 6(1)(B) of that Act to have the notice of revocation reviewed by a Committee of Review, which after inviting written statements from the applicant, heard the application without allowing the applicant to appear personally before it, and confirmed the revocation. The applicant was then ordered to be deported.

The applicant then instituted proceedings in the National Court seeking a declaratory order that the principles of national justice referred to in the Constitution of the Independent State of Papua New Guinea had been violated and that the applicant’s rights and freedoms were in need of protection and enforcement, and for an order that the applicant not be forcibly removed from Papua New Guinea.

The National Court made an interlocutory order to preserve the status quo pending a determination of questions relating to the interpretation of the Constitution which questions were then referred to the Supreme Court pursuant to s. 18(2) of the Constitution. On this reference it was:

Held

(1) The Minister for Foreign Affairs and Trade in revoking an entry permit of a non-citizen under s. 7 of the Migration Act 1963, and a Committee of Review appointed under that section to review that revocation are not determining the existence or extent of a civil right within the meaning of s. 37(11) of the Constitution of the Independent State of Papua New Guinea.

R. v. Inspector of Leman Street Police Station; Ex parte Venicoff, [1920] 3 K.B. 72;

R. v. Governor of Brixton Prison; Ex parte Soblen, [1963] 2 Q.B. 243; Re Marles’ Application, [1958] E.A. 153;

Attorney-General for the Dominion of Canada v. Cain [1906] UKLawRpAC 37; [1906] A.C. 542, at p. 546; and

R. v. MacKellar; Ex parte Gaunt [1914] ArgusLawRp 13; (1978), 20 A.L.R. 119, applied.

Birdi v. Secretary of State for Home Affairs (1975), (judgment of C.A., 11th Feb., 1975, reported in part in (1976) 92 L.Q.R. 34; (1975) 119 S.J. 322; The Times, 12th Feb., 1975);

Salemi v. MacKellar (No. 2) [1977] HCA 26; (1977), 137 C.L.R. 396; 14 A.L.R. 1;

R. v. MacKellar; Ex parte Ratu [1977] HCA 35; (1977), 137 C.L.R. 461; 14 A.L.R. 317; and

Schmidt v. Secretary of State for Home Affairs, [1969] 2 Ch. 149, at p. 170, considered.

(2) (Wilson J. dissenting) The principles of natural justice do not apply in proceedings under the Migration Act 1963 regarding the revocation of the entry permit of a non-citizen and an order for deportation.

R. v. Inspector of Leman Street Police Station; Ex parte Venicoff, [1920] 3 K.B. 72;

R. v. Governor of Brixton Prison; Ex parte Soblen, [1963] 2 Q.B. 243;

Re Marles’ Application, [1950] E.A. 153;

Attorney-General for the Dominion of Canada v. Cain[1906] UKLawRpAC 37; , [1906] A.C. 542, at p. 546; and

R. v. MacKellar; Ex parte Gaunt [1914] ArgusLawRp 13; (1978), 20 A.L.R. 119, applied.

(3) The revocation of an entry permit under s. 7 of the Migration Act 1963 with an accompanying threat of deportation is not an actual or imminent infringement of the qualified rights set out in Sub-div. C of Div. 3 of Pt III of the Constitution of the Independent State of Papua New Guinea, and accordingly it is not necessary for the Migration Act 1963 to comply with the provisions of s. 38 of the Constitution.

(4) In the circumstances, the revocation of the entry permit by the Minister for Foreign Affairs and Trade and the subsequent confirmation of the revocation by the Committee of Review were not unlawful acts within the meaning of s. 41 (Proscribed acts) of the Constitution of the Independent State of Papua New Guinea.

Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation[1947] EWCA Civ 1; , [1948] 1 K.B. 223; and

Padfield v. Minister of Agriculture, Fisheries and Food, [1968] UKHL 1; [1968] A.C. 997, applied.

(5) The provisions of s. 61AA of the Migration Act 1963 which prohibit the “review or challenge in any court on any ground whatsoever” of any decision of the Minister for Foreign Affairs and Trade, relating to the grant or revocation of an entry permit or the deportation of a non-national, are not unconstitutional and must be read down in the light of s. 57(1) s. 155 and s. 166 of the Constitution of the Independent State of Papua New Guinea: they cannot prevent the jurisdiction of the National and Supreme Courts being invoked in support of alleged Constitutional Rights and against alleged breaches of the Constitution.

(6) (Per Prentice C.J., Saldanha J., Andrew J. and Raine J. not deciding, and Wilson J. dissenting) The revocation of the entry permit by the Minister for Foreign Affairs and Trade and the subsequent confirmation thereof by the Committee of Review, were properly made and should stand.

Reference

This was a reference to the Supreme Court pursuant to s. 18 (2) of the Constitution of the Independent State of Papua New Guinea which provides that, where any question relating to the interpretation or application of any provision of a constitutional law arises in any court or tribunal other than the Supreme Court, the court or tribunal, shall, refer the matter to the Supreme Court.

The proceedings from which the reference arose were proceedings in the National Court, by a non-national whose entry permit had been revoked by the Minister for Foreign Affairs and Trade, seeking a declaratory order that the principles of natural justice referred to in the Constitution had been violated and that the applicant’s rights and freedoms were in need of protection and enforcement and for an order that the applicant not be forcibly removed from Papua New Guinea.

The questions referred were as follows:

“Q1. Are the Minister for Foreign Affairs and Trade, in revoking an entry permit of a non-citizen under s. 7 of the Migration Act 1963 (as amended) and a Committee of Review appointed under that section to review that revocation determining the existence or extent of a civil right within the meaning of s. 37(11) of the Constitution and if so should either of such proceedings have been held in public in accordance with s. 37(12) of the Constitution or alternatively if other persons were excluded pursuant to s. 37(13) should not the complainant have been permitted to be present during such proceedings?

Q2. Is the revocation of an entry permit under the Migration Act 1963 (as amended) with an accompanying threat of deportation, an actual or imminent infringement of the qualified rights set out in Sub-divn C of Divn 3 of Pt III of the Constitution and if so should that Act comply with the provisions of s. 38 of the Constitution?

Q3. In the circumstances of this case were the revocation of the entry permit by the Minister for Foreign Affairs and Trade and the subsequent confirmation of the Committee of Review unlawful acts within the meaning of s. 41 (proscribed acts) of the Constitution?

Q4. Are the provisions of s. 61AA of the Migration Act 1963 (as amended) unconstitutional in that they purport to totally deprive a person the subject of any of the acts or decisions therein mentioned of access to the courts of Papua New Guinea on any ground whatsoever in relation to any such act or decision?

Q5. Depending upon the answers to the four preceding questions, should the revocation of the entry permit giving rise to this reference be quashed or otherwise dealt with by the Supreme or National Courts in accordance with either s. 22, s. 57 or s. 155(4) of the Constitution?

Q6. In view of doubt expressed before me at the hearing of the subject application for injunction are the decisions of the Minister for Foreign Affairs and Trade and of the Committee of Review above referred to within the investigatory powers of the Ombudsman Commission pursuant to s. 219 of the Constitution?”

Counsel

J. K. Gawi, for the applicant.

D. W. Baker, for the Independent State of Papua New Guinea.

Cur. adv. vult.

3 September 1979

PRENTICE CJ: A reference has been made to the Supreme Court respecting the application and interpretation of the Constitution of the Independent State of Papua New Guinea (s. 18). A certain Dr. Premdas (hereinafter referred to as the applicant), an American citizen who was a lecturer at the University of Papua New Guinea under a contract which was to run till 1982, had been requested by the Minister for Primary Industry, Mr. Roy Evara (apparently a former pupil of his), to assist with the running of his Department. Thereupon the applicant attended at the Department and made his services available without charge. Under the Ministerial Personal Staff Act 1972, research officers or personal assistants (as distinct from the departmental staff of the Public Service) must be approved by the Prime Minister, take an oath of secrecy, and comply with the Act. Apparently the Secretary of the Department, Mr. John Natera, complained about the applicant’s attendance and interference in the running of his Department. The Prime Minister by letter of 18th April, 1979, directed that the applicant cease to be so employed. Apparently the Minister then attended upon the Prime Minister at Wewak, and became of the impression that the Prime Minister had changed his mind. But a further letter came to him from the Prime Minister’s office, dated 8th May, 1979, making it clear that the applicant was to remove himself from departmental activities.

Thereafter the Minister for Foreign Affairs and Trade, made an order under s. 7(1)(A) of the Migration Act 1963 revoking the applicant’s permit to enter Papua New Guinea. The applicant then applied under s. 6 (1) (B) of that Act to have the notice of revocation reviewed by a Committee of Review. Such a committee was appointed and heard the application (though its procedures resulted in the complaints involved in this reference), and confirmed the Minister for Foreign Affairs and Trade’s revocation. The applicant then being a prohibited immigrant was ordered to be deported.

Thereupon the applicant instituted action No. WS 536 of 1979 in the National Court seeking a declaratory order that the principles of natural justice referred to in the Constitution had been violated, and that the applicant’s rights and freedoms were in need of protection and enforcement, and for an order that the applicant not be forcibly removed from Papua New Guinea. He also sought an interlocutory injunction to restrain enforcement of the deportation order.

An interlocutory order was made by the National Court for the purpose of maintaining things as they were pending a decision on the various matters arising, it was said, from the provisions of the Constitution of the Independent State of Papua New Guinea, and this reference was then made.

It is convenient to set out the following matters of fact (which appear to be uncontested), stated by the learned judge of the National Court for the assistance of this Court in applying the Constitution to the case:

“5. On 11th June, 1979, the applicant wrote to Mr. Lifu requesting that his case be reviewed by a Committee of Review and setting out some eleven grounds upon which such request was made. The detail of these grounds are irrelevant except to say that the applicant did claim that he had never been guilty of any misconduct leading to any complaint against him, he had never been prosecuted in any court of law either civilly or criminally, that he had not been given opportunity of a fair trial and generally that the deportation notice violated the Constitution, in particular Pt III, Divn 3 (basic rights) and Divn 4 (principles of natural justice). The applicant said he would be pleased to appear before the Committee of Review.

6. On 19th June, 1979, the applicant wrote another lengthy letter to Mr. Lifu speculating upon the possible reasons for the revocation and advancing many arguments against them. The detail of this letter is again irrelevant to this reference except to say that one of the matters raised was the applicant’s admitted involvement in the affairs of the Department of Primary Industry between February and May this year. The claim made by the applicant was that he was asked by the Minister for Primary Industry Mr. Roy Evara to assist him in the organization and administration of that Ministry for a limited period, on an advisory and unpaid basis, and that such proposal was “cleared by” the Prime Minister. This letter was copied to the Ombudsman Commission.

7. Under the Migration Act 1963 a Committee of Review is appointed by the Prime Minister. On 20th June, 1979, Miss J. L. Kekedo, the Acting Secretary of the Department of the Prime Minister, wrote a letter to the applicant which (omitting formal parts), I set out in full:

‘I write to advise you that the Committee of Review will meet to consider your application on Tuesday, 26th June 1979 at 10.00 am at the Conference Room, 9th Floor, Marea House, Waigani.

Any written statements from yourself or third persons which you may wish the Committee to consider should be submitted to Mr. Moi Kanat of this Department prior to 4.06 pm on Monday, 25th June, as should any request to appear personally before the Committee.

I am instructed to advise you that the main reason for the revocation of your entry permit is that the Government will not allow non-citizens to remain in Papua New Guinea, who involve themselves in activities which it considers to be disruptive and detrimental to the good government of this country, and in particular, your unauthorised involvement and intrusion into the management of the Department of Primary Industry’.

8. On 21st June, 1979, the applicant wrote to Miss Kekedo enclosing his letter of 19th June and requesting particulars of the allegations made in the third paragraph of her letter of 20th June. In addition the applicant requested that he be given the opportunity of personally appearing before the Review Committee at the time and place appointed.

9. On 22nd June, 1979, Miss Kekedo replied to the applicant acknowledging receipt of his letter of 21st June and its contents. She stated that having considered the provisions of the Migration Act 1963 there was no necessity for the Government to reply to a request for information.

10. The applicant attended at the time and place fixed for the meeting of the Review Committee but was not allowed to appear personally before it. The Committee comprised the Minister for Commerce, Sir Pita Lus, the Minister for Decentralization, Fr. John Momis and the Minister for Health, Mr. Raphael Doa.

11. On 28th June, 1979, the decision of the Review Committee was communicated to the applicant by letter from Mr. A. M. Siaguru the Secretary for the Department of Foreign Affairs and Trade. The contents of the letter I set out in full:

‘I have been instructed by the Minister for Foreign Affairs and Trade to advise you of the decision of the Committee of Review which met on 26th June 1979 to consider your application for a review of the Notice of Revocation of your entry permit.

The Committee of Review carefully considered your application and all submissions from other parties. After lengthy deliberation, the Committee decided to uphold the revocation of your entry permit. Whilst your competence as a political scientist was not questioned, the Committee was of the view that you interfered unduly in administrative and technical matters outside of your particular expertise within the Department of Primary Industry. At various times during the course of your attendance upon the Minister for Primary Industry, you would have had access to matters which would mean a conflict of interest with respect to your role as a university lecturer. It would appear, however, that you did not rule yourself out of consideration of those matters where you would have undoubtedly had a division of loyalties.

Therefore, in accordance with the Notice of Revocation of Entry Permit dated 31st May 1979 and the subsequent letter of 6th June 1979 from the First Assistant Secretary, Immigration and Citizenship Division of this Department, you are required to depart from Papua New Guinea on or before 4th July 1979.’"

Other observations included in the reference included the following:

“Also present was Mr. Ignatius Kilage the Chief Ombudsman, who confirmed that an application had been made to the Ombudsman Commission to investigate the complaints made by the applicant but that the Commission had not had time to decide whether it had the power to investigate a matter of this type. Mr. Kilage did indicate his own preliminary view of the matter as being that the applicant should have been entitled to a hearing.”

On the possible Ombudsman Commission’s investigation point his Honour stated:

“I wish to make it quite clear that I am not indicating my views on the rights or wrongs of this matter nor am I attempting to influence any decision which the Ombudsman Commission might make, either to investigate or not, or if the matter is to be investigated, as to the merits of the applicant’s complaint. On the face of it it does appear to me that the Commission has the power to investigate the matter and on the evidence before me it does appear to be a complaint which has some grounds for it. But I say again, I do not indicate in any way whether those grounds are valid grounds in my opinion or not”.

Arising from the argument of counsel in the National Court, the following questions were referred to the Supreme Court:

The provisions of s. 61AA Migration Act 1967 as amended, are as under:

“No Appeal Against Decision of Minister, Etc.

(1) No act, proposed act or decision of the Minister relating to the grant or revocation of an entry permit or to the deportation of any non-national, nor any decision of a Committee of Review under Section 7, is open to review or challenge in any court on any ground whatsoever.

(2) Without limiting the generality of Subsection (1), the expression ‘review or challenge’ in that sub-section includes:

(a) a writ of certiorari, prohibition or mandamus or other form of prerogative writ, or other writ, order or process in the nature of such a writ; or

(b) proceedings by way of appeal or for a writ, order or process referred to in paragraph (a) (including proceedings for an order Nisi or to show cause why relief should not be granted).”

It is I think desirable that I should deal first of all with question 4; for if that question be answered “No,” it might be thought that neither the National Court nor the Supreme Court had power to entertain any application at all which sought to question or affect the operation of the Minister’s order for deportation.

The jurisdiction of the National Court is given by the people of Papua New Guinea by s. 166 of the Constitution which reads as follows:

“(1) Subject to this Constitution, the National Court is a court of unlimited jurisdiction.

(2) In particular, the National Court has the jurisdiction set out in:

(a) Section 22 (enforcement of the Constitution); and

(b) Subdivision III.3.D (enforcement); and

and otherwise as provided by this Constitution or any other law.”

Section 155, so far as relevant to the National Court and material for consideration here, reads (emphasis mine):

“(3) The National Court:

(a) has an inherent power to review any exercise of judicial authority; and

(b) has such other jurisdiction and powers as are conferred on it by this Constitution or any law,

except where:

(d) ...

(e) the power of review is removed or restricted by a Constitutional Law or an Act of the Parliament.

(4) Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.

(5) In a case referred to in Subsection (3)(e), the National Court has nevertheless an inherent power of review where, in its opinion, there are over-riding considerations of public policy in the special circumstances of a particular case ...”

It will be noted that the National Court’s “power of review” is related to exercises of “judicial authority”. The latter term is not defined in the Constitution, though “judicial officer” is stated to mean “a Judge or Magistrate of a court within the National Judicial System (other than a magistrate or member of a village court) in his capacity as such.” The exercise of power by administrative bodies is not normally regarded as an “exercise of judicial authority,” though sometimes such bodies are required by their creating statutes to “act judicially”. I see no reason to justify the construction of the phrase “power of review” in s. 155 (3) (e) and s. 155 (5) differently from that it is expressed to have in s. 155 (3) (a)—namely a power to review any exercise of judicial authority, which should in my opinion exclude exercise of power by administrative (non-judicial) bodies. In so far therefore as s. 61AA of the Migration Act 1963 excludes an appeal to any court by way of “review”. It does not in my opinion trespass upon a grant of power by the “Constitution itself as to review of exercises of “judicial authority.”

However, the Constitution specifically vests power in the National Court to enforce the Constitution under its ss. 22, 57, and 58 (see s. 166); and there is no provision for that power to be in any way invaded by an Act of Parliament. So far therefore as the enforcement of any provision of the Constitution or of any right granted by the Constitution might become involved, s. 61AA so far as it purports to bar any “challenge” to a decision, could not prevail. It could not therefore operate to prevent the existence of rights sought to be declared as in this action, being ventilated and decided.

It was sought by the Government to contend that s. 155 (4) did not amount to a grant of jurisdiction or power.

If the Constitution be regarded as making a distinction clearly between jurisdiction and power, s. 155 (4) must at least be regarded as a grant of power. There appears no other source by which the power specified therein could have been granted by the people to the court so as to enable that section to be read as merely declaratory. But I do not apprehend the section to have given the Supreme Court jurisdiction to review by writs in the nature of prerogative writs, matters other than those normally coming within the purview of courts, (such as status, property, contract and so on), or involving the enforcement of the Constitution and the rights it guarantees. One does not envisage that thereby alone this Court becomes potentially seized of enquiries into how, and how fairly, executive decisions were arrived at, or those say of private committees such as political parties, football clubs, parents and friends associations, and so on. “The administrative process is not, and cannot be, a succession of justiciable controversies ... The prospect of judicial relief cannot be held out to every person whose interests may be adversely affected by administrative action.” (S.A. de Smith, Judicial Review of Administrative Action (2nd ed., 1968), p. 3). I would answer question 4, “No; s. 61AA of the Migration Act 1963 is not unconstitutional; but it cannot prevent the jurisdiction of the National and Supreme Courts being invoked in support of alleged Constitutional Rights and against alleged breaches of the Constitution.”

QUESTION 1. WAS A “CIVIL RIGHT'S” EXISTENCE OR EXTENT BEING DETERMINED?

In support of the contention that both the Minister and the Committee in revoking an entry permit and making a deportation order were dealing with a civil right, reliance was placed upon s. 37 (protection of the law), s. 42 (1) (liberty of the person), and s. 48 (freedom of employment). It was also submitted that a basic right had been violated in that the hearing before the Minister, and also that before the Committee, had failed to apply the rules of natural justice (and reference was made to s. 59 and s. 62 of the Constitution) in that such enquiries as were made, were not conducted in public, particulars of complaint were not supplied, and the applicant was not allowed to be present or represented.

The grant of an entry permit associated with a contract of employment, gave rise it was submitted, to a “civil right” which had been terminated without being fairly heard by an authority other than of the kind provided for by s. 37 (11), and other than in public as required by s. 37 (12). These subsections read as follows:

“(11) A determination of the existence or extent of a civil right or obligation shall not be made except by an independent and impartial court or other authority prescribed by law or agreed upon by the parties, and proceedings for such a determination shall be fairly heard within a reasonable time.

(12) Except with the agreement of the parties, or by order of the court in the interests of national security, proceedings in any jurisdiction of a court and proceedings for the determination of the existence or extent of any civil right or obligation before any other authority, including the announcement of the decision of the court or other authority, shall be held in public.”

The Minister’s action ousted a right coupled with an interest, in extinguishing not only the applicant’s right to remain in Papua New Guinea, but not be employed at the University, it is said.

In addition, in that the Minister had purported to act on allegations of disruptive activities, the applicant was visited with a stigma which must be regarded as amounting to a deprivation of his liberty, it is submitted.

I may say at once that I consider s. 48 of the Constitution does not assist the applicant at all. The right guaranteed is to choice not to the practice of employment. The right to freedom of choice of employment is by the section expressly made subject to the exception of “a law that imposes restrictions on non-citizens.” Similarly I think it clear that s. 48 refers literally to personal liberty, and does not have application to defamation.

The question of whether a permit to enter Papua New Guinea confers upon an alien a “civil right” which enjoys the protection of s. 37 (11) and (12) of the Constitution is a difficult one. The term “civil right” is not defined. The phrase does appear in art. 6 (1) of the European Convention on Human Rights, from which, a comparison would seem to indicate, the whole of our s. 37 of the Constitution has been taken. In litigation in Europe the phrase has been taken to encompass rights given under the law—meaning in the private not public law fields (Birdi v. Secretary of State for Home Affairs[ccclxxxix]⁴). Jacobs, The European Convention on Human Rights (1975), at p. 77, suggests that there must be some pre-existing relationship under civil law, and that many kinds of administrative proceedings will not be covered by art. 6 (1). In Birdi’s case, decided 11th February, 1975, Lord Denning at p. 8 of his judgment stated[cccxc]⁵:

“We were also referred to article 6. It says that:

‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’

There is no infringement of that article here. The words ‘civil rights and obligations’ are used to denote the rights and obligations given by the civil law of the country. The article does not extend to administrative procedures, such as licences given by a licensing authority, nor to the permissions given to aliens to enter a country. Nor does it apply to the leave given or refusal made under the Immigration Act 1971.”

That the grant of an entry permit amounts not to a “civil right” but to a mere licence revocable at any time by executive act is supported by a number of cases based on comparable foreign statutory provisions. The starting point is the declaration of the Privy Council in Attorney-General for the Dominion of Canada v. Cain[cccxci]⁶ in reliance upon Vattel’s Law of Nations, that[cccxcii]⁷:

“One of the rights possessed by the supreme power in every State is the right to refuse to permit an alien to enter that State, to annex what conditions it pleases to the permission to enter it, and to expel or deport from the State, at pleasure, even a friendly alien, especially if it considers his presence in the State opposed to its peace, order, and good government, or to its social or material interests.”

The decisions of R. v. Inspector of Leman Street Police Station; Ex parte Venicoff[cccxciii]⁸, R. v. Governor of Brixton Prison; Ex parte Soblen[cccxciv]⁹, and Re Marles’ Application[cccxcv]¹⁰, illustrate that “rights” were not in question when deportation of aliens was being considered, and that the procedures therein involved not judicial but administrative functions. In the latter case it was expressly stated by the Supreme Court of Kenya that “Immigration is, and we think must always be, a jealously guarded privilege, and it would seem that the fact that it is a privilege, and not a right is often overlooked” (emphasis mine), (MacDuff J.[cccxcvi]¹¹). I am unable to see that if a permit to enter does not itself confer rights, that an alien can by entering upon a contract of employment convert a “licence to remain” into a “right to remain.” Such a process would surely make nonsense of the sovereign power of the people exercised through their Government, to allow entry of aliens to Papua New Guinea.

The sections of the Constitution which deal with rights, though containing provisions which are restricted to citizens only, may be thought to be far from explicit as to the extent to which guaranteed rights adhere to aliens in any event. Schedule 1.3 of the Constitution recites that recourse may be had to the preamble as an aid to interpretation in cases of doubt. And s. 24 of the Constitution provides that the report of the Constitutional Planning Committee may be used as an aid to interpretation of any provision of a constitutional law.

The Commission’s observations on the national goals and principles, as a guide to interpretation (C.P.C. 2/25), states on note (i):

“To exemplify the manner in which cl. (1) of this recommendation is intended to be applied as an aid to interpretation, we envisage that where the meaning of a constitutional provision is in question, or there is doubt as to the constitutional validity of any law or administrative action, or there is ambiguity in any law, or no particular law or principle of law appears to apply to the circumstances involved in any matter before a court, the court will give an interpretation which is consistent with the National Goals and Directive Principles rather than an alternative interpretation.”

At page 5/1/12 par. 70 the Commission observed that:

“All countries, in the interests of their own citizens place restrictions on the entry of foreign citizens to their territory, and upon the period during which they may remain in the country, though of course some states are much more strict in this regard than are others. All countries also have legislation which provides for the deportation of foreign citizens in a range of circumstances which usually includes a number of situations besides that in which a foreign citizen is found guilty of a criminal offence. For example, under United Kingdom legislation a foreign citizen may be deported whenever the Home Secretary ‘deems it conducive to the public good’.

71. We believe the right to limit the movement of foreign citizens is part of a country’s sovereign rights, and should be retained as such. This is not to say that we consider that foreign citizens should be unreasonably restricted in regard to the parts of the country to which they may travel. We simply believe that the full power of Parliament to make appropriate laws to limit the movement of non-citizens in the interests of all Papua New Guinean citizens must be retained.”

Section 25 of the Constitution provides in sub-s. (3) that:

“Where any law, or any power conferred by any law (whether the power be of a legislative, judicial, executive, administrative or other kind), can reasonably be understood, applied, exercised or enforced, without failing to give effect to the intention of the Parliament or to this Constitution, in such a way as to give effect to the National Goals and Directive Principles, or at least not to derogate them, it is to be understood, applied or exercised, and shall be enforced, in that way.”

And sub-s (4) states:

“Subsection (1) does not apply to the jurisdiction of the Ombudsman Commission or of any other body prescribed for the purposes of Division III.2 (leadership code), which shall take the National Goals and Directive Principles fully into account in all cases as appropriate.”

The declaratory acknowledgement as to “Basic Rights” in the preamble to the Constitution asserts (emphasis mine):

“We hereby acknowledge that, subject to any restrictions imposed by law on non-citizens, all persons in our country are entitled to the fundamental rights and freedoms of the individual, that is to say ...”

Having regard to the above interpretative injunctions, I form the opinion that the provisions of the Constitution as to “rights” are in the case of non-citizens, to be interpreted “subject to any restrictions imposed by law”; so that were the permit to enter to be considered “a civil right”, it would nevertheless be subject to restrictions imposed by law — and I do not apprehend that such a law (in the case of non-citizens) need comply with s. 38 (2) of the Constitution, the operation of which would catch measures applying to citizens as well as aliens, or to citizens alone.

In support of the assertion that the principles of natural justice had not been applied and that such a procedure breached the Constitution, reliance is placed upon ss. 59 and 62. The definition of “principles of natural justice” in the schedule does not appear to assist consideration of the issue thus raised.

Section 59 appears only to define the principles of natural justice for the purpose of construing the phrase in the application of the Constitution. Though s. 59 (1) refers to them as the “rules of underlying law known by that name developed for control of judicial and administrative proceedings”; it cannot in my opinion be read as an injunction that they shall as so described be applied in administrative proceedings. The only sections of the Constitution which enjoin their application appear to be s. 28 (5)— relating to Leadership Code proceedings, s. 37 (2)— relating to village court proceedings, and possibly s. 37 (11) in its requirement that proceedings involving civil rights shall be “fairly heard”. I have already expressed my conclusion that no such civil right was here in question.

I am left the conclusion that the only manner in which the principles of natural justice may become applicable in proceedings or enquiries before the Minister or the Committee of Review under the Migration Act 1963 — would be by virtue of the adoption of the common law of the United Kingdom, or by a declaration by this Court of the positive establishment of such a principle in the underlying law being developed in Papua New Guinea under Sch. 2.3.

That the principles of natural justice are not applied in the common law of the United Kingdom as at Independence, to allow of interference in administrative or executive decisions relating to deportation of aliens, is clear. Persons or bodies exercising power of deportation of aliens have been held to be acting in executive (or administrative) and not judicial capacity; and their exercises of discretion in those matters therefore unexaminable. See R. v. Inspector of Leman Street Police Station; Ex parte Venicoff[cccxcvii]¹², R. v. Governor of Brixton Prison; Ex parte Soblen[cccxcviii]¹³ and Re Marles’ Application[cccxcix]¹⁴; though Lord Denning M. R. in Schmidt’s case[cd]¹⁵, would adopt it seems Mr. Gawi’s submission here, that a distinction based only on the “administrative” as compared with “judicial” functions is no longer apt.

The position in Australia, despite criticism in Professor de Smith’s book of English decisions on the subject, appears to be that there the principles of natural justice are held inapplicable to an enquiry by a Minister as to deportation of an alien; see R. v. MacKellar; Ex parte Gaunt [cdi]¹⁶, and the cases there discussed of Salemi v. Minister for Immigration and Ethnic Affairs (No. 2)[cdii]¹⁷ and R. v. MacKellar; Ex parte Ratu [cdiii]¹⁸.

I remain unpersuaded that the situation in Papua New Guinea calls for a declaration that the principles of natural justice apply in proceedings under the Migration Act 1963 regarding the revocation of an alien’s entry permit and an order for his deportation. I would answer question 1 and question 2 also, “No”.

QUESTION 3. ARE THE MINISTER'S AND THE COMMITTEE'S ACTS UNLAWFUL UNDER S. 41 OF THE CONSTITUTION?

Section 41 is in the following form:

“Proscribed acts.

(1) Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case:

(a) is harsh or oppressive; or

(b) is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or

(c) is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,

is an unlawful act.

(2) The burden of showing that Subsection (1) (a), (b) or (c) applies in respect of an act is on the party alleging it, and may be discharged on the balance of probabilities.

(3) Nothing in this section affects the operation of any other law under which an act may be held to be unlawful or invalid.”

The court was informed by counsel for the Government that he was unable to discover any comparable provision in the constitutions of any of the countries of the world. And we know that this is the first occasion on which its aid has been sought in argument in this Court.

As I understand Mr. Gawi’s argument on this branch of his submissions, he relies upon subsections (a) and (b) of the section. The acts to which he addresses complaint are those of revocation of entry permit and making of a deportation order. He submits that such orders were harsh and oppressive, and not warranted by and disproportionate to the particular circumstances. The reasons he advances are that the applicant was acting under the directions of the Minister of the Department concerned, who himself alleges that he had the approval of the Prime Minister to engage the applicant, and that the applicant had done nothing to warrant deportation. It is material to consider, Mr. Gawi says, that the applicant was not engaged under the Ministerial Personal Staff Act and was acting in an unpaid capacity. No significance is to be attached he says, to the fact that the section appears in that subdivision (III.3.C) dealing with qualified rights; inferentially it can be prayed in aid of more basic rights as well.

I find difficulty in understanding why such a novel power should be restricted to the protection of qualified rights and not apply to basic and fundamental rights as well. Paragraph 120 of the G.P.C. report (at 5/1/20) insofar as it states “We recommend that to provide a safeguard against abuse of or excessive use of illegal power provided for in this part” (human rights and obligations and emergency powers) “any action which is excessive or oppressive in the actual circumstances of the case should be unlawful ...”, would appear to indicate an intention of general application — as does recommendation 19 (at 5/1/33). The body of s. 41 itself contains no reference at all to its being restricted to the support of “rights”.

I consider that, giving s. 41 a fair and liberal meaning as the court is instructed to do by schedule 1.5(2) of the Constitution, it should be regarded as of general application. The criteria put forward in the section are clearly questions of fact. Both counsel concur in the submission that in assessing the quality of the relevant facts, the test should be an objective one. I feel that the test should be to question whether the Minister and the Committee acted as reasonable men in the circumstances, having regard to the policy of the act on the one hand and the various provisions of the Constitution on the other.

Assistance may be gained I believe, from an examination of the licensing (not migration cases) referred to by government counsel on this aspect, namely Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [cdiv]¹⁹, and Padfield v. Minister of Agriculture, Fisheries and Food [cdv]²⁰. In the former case Lord Greene M.R. stated, the case being one where abuse of a discretionary power was alleged[cdvi]²¹:

“When discretion of this kind is granted the law recognises certain principles upon which the discretion must be exercised, but within the four corners of those principles the discretion, in my opinion, is an absolute one and cannot be questioned in any court of law ...[cdvii]²² that the decision of the ... authority can be upset if it is proved to be unreasonable, really meant that it must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body could have come to. It is not what the court considers unreasonable, a different thing altogether.”

In Padfield’s case[cdviii]²³, Lord Reid sees the order of mandamus as running to the Minister under the Act in question, where the Minister by reason of having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act. There can be no such matter urged in the instant case.

There are five affidavits before the court, those of the applicant of 3rd and 4th July, that of the Minister Roy Evara of 22nd July, that of Secretary John Natera of 27th July, and that of Minister N. E. Olewale of 27th July.

The facts which emerge disclose a conflict between the desires of the Minister Mr. Evara and the instructions of the Prime Minister. The applicant apparently assumed the role of and described himself as, an “executive officer” between the end of February and the 2nd May. He issued instructions direct to the departmental staff — on 5th March for example he issued eleven minutes. He involved himself in another Department’s affairs. He had access to classified material. He had not been subject to a security check, nor had he been required to take the oath of secrecy. It must be inferred I think that he became aware of the Prime Minister’s letters requiring his dismissal from the office (though not from the private counsels of the Minister outside office hours). He continued to issue instructions. He was present in the office with access to files as late as 24th May and 6th June. His activities clearly affected staff work. It may be that he stayed on at the urging of Minister Evara, but when he did so against the express requirements of the Prime Minister, he as a politically aware academic must have known he was possibly exposing himself to executive action. He himself indicated in his submission to the Secretary of the Department of Foreign Affairs and Trade that he became associated with the “student political arm” at the University.

It is I think fair to say that a serious situation had arisen as a result of the applicant’s access to confidential documents when not employed under the Ministerial Personal Staff Act 1972 and was still employed in the Department of Politics and Administrative Studies at the University; and that a serious staff and morale situation had arisen at the Department of Primary Industry because of his activities therein. In those circumstances it appears to me that the Minister acted reasonably and in accordance with the policy and intent of the Migration Act 1963 and its 1975 amending Act — which is entitled — “An Act to amend the Migration Act 1963 as amended to date, to give the Government greater control over the entry into and stay in Papua New Guinea of non-nationals ...”

Both the Minister and the Committee acted lawfully in my opinion. That I believe they could each have acted more advisedly and with greater apparent regard to fairness and proprieties — an end which no doubt would have been furthered by a public hearing at which the applicant was allowed to make personal representation — is not in my opinion, to the point. They had acted within well understood principles as to a sovereign state’s maintaining control over the activities of aliens within its borders. I do not consider the revocation of entry permit and order for deportation to have been shown to be harsh or oppressive — even having regard to the professional contract which the applicant held. Nor do I regard it as unwarranted by or disproportionate to the requirements of the particular case. No doubt the problem could have been met by the withdrawal of the Minister’s portfolio should he have continued to insist on the applicant’s presence and advice in departmental affairs. That the state of concern about staff morale and security was met rather by the order to deport the applicant, is not I think a matter which comes to his assistance in invoking s. 41.

I would answer question 3, “No”. Having regard to my suggested answers to the foregoing questions, I would answer question 5, “No”.

QUESTION 6. REFERENCE TO THE OMBUDSMAN'S COMMISSION

Both counsel agree that question 6 should be answered, “Yes”. However as no argument has been addressed to this Court, and it is clear that no bar will be placed upon any intended access to the Ombudsman Commission from the Government side, I am of the opinion that the question has no immediate relevance to the circumstances presently obtaining, and that this Court should decline to answer it.

RAINE DCJ: The facts are clearly stated in the judgment of the Chief Justice, which I have read in draft. As the Committee of Review sat in private and as the order made by the Minister was purely administrative, it may well be that all the facts of the matter are not before us, indeed this is probably so. I should add that I draw the same inference as does the Chief Justice, namely, that the applicant knew that the Prime Minister strongly required that he leave the offices of the Department. There can be no doubt he would have known. He seems to have had access to everything in the offices and he was extremely close to the Minister. I have no doubt he would have seen or been shown the Prime Minister’s two letters. Their terms, and their tone, were un-mistakable.

The Chief Justice has referred to the interlocutory order made by a single judge. I would add that there was nothing surprising in what Pritchard J. did. It was a most urgent application, there was no time for the judge to hear, as we now have done, lengthy argument on what to me has been a very difficult matter. It was highly predictable that his Honour, or any judge similarly placed, would make a holding order.

I now turn to consider the various questions asked. I will not set them out as the Chief Justice has done so.

QUESTION 1

Firstly, I am not impressed with the argument that the Minister prevented the applicant from exercising his right to have a free choice of employment, as given to him by s. 48 of the Constitution. Section 48 excepts non-citizens, where freedom can be restricted. The reason for this is obvious, the founding fathers did not want situations arising where able nationals could not get jobs they could easily hold down because non-citizens were sitting in the chair. Such an exception is understandable and wise in the case of a developing country. Leaving the exceptions to one side, in my opinion all that s. 48 does is prevent citizens from being directed to job A, when they desire to go to or continue in job B.

The applicant cannot bring himself within s. 48. The action taken does not deprive him of a choice of employment here. If the action taken was lawful then the question of choice of employment, or of any employment at all, does not arise, for he will be gone.

Secondly, it is submitted that the action taken has deprived the applicant of his personal liberty, thus offending against s. 42, in the sense that his good name has been taken from him, rendering the accused liable to criminal or civil proceedings for defamation.

This submission limits itself to the opening words of s. 42. They are:

“42. Liberty of the person

(1) No person shall be deprived of his personal liberty except”

Inherently I regard the action taken as an internal and domestic affair. But the submission ignores all that follows for s. 42 clearly directs itself to the body of a man, if I might put it that way. It is aimed at situations where the authorities locked somebody up for no good reason, or, if there was good reason, kept him locked up without charging him, or trying him. There are a number of necessary and reasonable exceptions to the basic principle, none of which are peculiar to this country, namely, where for reasons of health, unsoundness of mind, etc., it is essential to take people into custody in what would otherwise appear to be an arbitrary way. It my opinion this submission fails. Section 42 has nothing to do with defamation.

The third matter raised on behalf of the applicant is much more difficult. This is the s. 37(11) submission. The Chief Justice has stated the problem. With respect I agree with what his Honour has to say on the matter, and with his conclusion.

His Honour refers to art. 6(1) of the European Convention on Human Rights, from which s. 37 (11) is taken. In my latest part of the All England Reports there is a report on a case before the Court of Justice of the European Communities. It is R. v. Saunders[cdix]²⁴. It is not decisive as to what we are concerned with, but the C.J.E.C.’s approach to the problem before it confirms the view I hold that the reasons given by the Chief Justice, correct as I believe them to be, do not produce a result that smacks of injustice and causes one to recoil. I will set out the headnote, and art. 48, with which the C.J.E.C. was dealing[cdx]²⁵:

“The defendant was a citizen of the United Kingdom. On 21st December, 1977, having pleaded guilty to a charge of theft in the Crown Court, she was ordered to be bound over in her own recognisance of £50 on condition that she proceeded to Northern Ireland and did not enter England or Wales for a period of three years. In breach of this condition the defendant was found in Wales. She was arrested and brought back before the Crown Court for judgment. The prosecution raised the question whether the Crown Court’s binding-over order had infringed the defendant’s right to free movement under art. 48 of the E.E.C. Treaty. The Crown Court having considered that the defendant was a ‘worker’ within the meaning of art. 48, and that its binding-over order was not within the limitations justified on grounds of public policy, public security or public health allowed by that article, referred to the European Court under art. 177 of the E.E.C. Treaty the question whether a national of a member state could invoke the right of free movement conferred by art. 48 so as to challenge the legality of an order by a court of his own member state restricting his freedom of movement within that member state.

Held — The rules contained in the E.E.C. Treaty on the freedom of movement for workers did not affect a wholly domestic situation. In order to invoke those rules there had to be some factor connecting the situation of the worker concerned with the situations envisaged by Community law. Article 48 of the Treaty was designed to prevent a national of another member state being subjected to more severe treatment or being placed in an unfavourable situation in law or in fact compared with the situation in the same circumstances of a national of the member state imposing the restrictions; it was not intended to restrict the power of a member state to lay down restrictions, within its own territory, on the freedom of movement of all persons subject to its jurisdiction, in implementation of domestic criminal law (see p. 274j to p. 275a, p. 276b c and e f, p. 277f to h and p. 278a b, post).”

Article 48 provides[cdxi]²⁶:

“1. Freedom of movement for workers shall be secured within the Community by the end of the transitional period at the latest.

2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.

3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health: (a) to accept offers of employment actually made; (b) to move freely within the territory of Member States for this purpose; (c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action; (d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission.

4. The provisions of this Article shall not apply to employment in the public service.”

The C.J.E.C. said in its judgment[cdxii]²⁷:

“12. The application by an authority or court of a member state to a worker who is a national of that same state of measures which deprive or restrict the freedom of movement of that worker within the territory of that state as a penal measure provided for by national law by reason of acts committed within the territory of that state is a wholly domestic situation which falls outside the scope of the rules contained in the E.E.C. Treaty on freedom of movement for workers.”

I would not have deemed it necessary to add anything to the law cited by the Chief Justice and Andrew J. in their judgments were it not for the fact that the loose part of All England Reports containing R. v. Saunders[cdxiii]²⁸ fortuitously arrived in the mail after we had reserved our decision in this matter.

QUESTION 2

I have already answered this in answering question 1. I would answer this question in the negative.

QUESTION 3

The answer to this requires an examination of s. 41 of the Constitution which is set out in other judgments. The section is an unusual one, I have never had to consider it before. The Chief Justice in his judgment said that he understood Mr. Gawi to rely on s. 41(1)(a) and (b). This may well be correct. Whether it is or not, my notes do not assist me. I place some reliance on subsection (c). It reads:

“or

(c) is otherwise or not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind... .”

Although subsection (c) is an alternative reason for striking at certain acts, and rendering them unlawful, it seems to me that it gives guidance in construing the section as a whole. The circumstances here were most particular. I see a reasonable justification for the action taken, even in “a democratic society”. I see nothing harsh, oppressive, or unwarranted in the circumstances.

A democracy does not permit those living within it to have, as, it were, absolute licence. An Executive decision might hurt, and here and elsewhere, as we all know, people grumble at some of the Executive decisions made from time to time. But how can it be said that “the rights and dignity” of Dr. Premdas have been infringed. He bears the onus, and I do not believe he has discharged it. It may be that I as a judge might have come to a different conclusion, but that is not to the point. I am unable to say that the Minister and the appellate Committee fell foul of the requirements of all or any of subsections (a), (b) and (c). I think I might have acted differently, that is, adopted different procedures, had I been in their place. But I am not, nor was I, in their place. My task, and that of my brethren, is to examine what the Minister and the Committee did, or, if you like, failed to do, as representatives of what is a completely sovereign state. I see no good reason to state that what they did constituted an illegality.

Few areas involving the intervention of the Executive can be more sensitive than the presence on a country’s soil of aliens thought to be undesirable or even dangerous. It is an area where, I suppose, mistakes have and will be made. My position is that I am not persuaded here that a grave mistake, or mistake at all, was made by the senior people involved. Obviously there was, within Minister Evara’s Department, a most serious clash of personalities. The Prime Minister’s attitude was twice made very clear. The remedy was, to put it bluntly, seen to be surgery. As an Executive device I am not persuaded, on a balance of probabilities, (see s. 41(2)) that the surgery was so drastic and so clearly wrong as to be manifestly unreasonable in the sense that nobody could reasonably come to such a decision, placed in the Minister’s shoes, or those of the Committee.

I generally agree with what the Chief Justice and my brother Andrew have to say on the matter.

QUESTION 4

I never had any doubt, during argument, that s. 61AA of the Migration Act 1963 was constitutional. But this is not to say that this court will not step in where there are indications that the section is being used in breach of the Constitution, and I am not prepared to hold, at this point, that we are not given a right to review administrative decisions such as this one, where the deportation of a non-national is involved, I do not find it necessary to decide this, the facts here being as they are. My tentative view is that the Supreme Court could intervene, in a proper case, where the Constitution is involved. But I leave it open. I would answer the question in the negative.

QUESTION 5

I need not answer this.

QUESTION 6

In view of the attitude of counsel, and I certainly do not say this critically, I think we should decline to answer the question.

SALDANHA J: Dr. Ralph Rakhinand Premdas (hereinafter referred to as “the applicant”) is a lecturer in politics and Chairman of the Political and Administrative Studies Department at the University of Papua New Guinea under a contract which is to run till 1982. He is an American citizen. He was the holder of an entry permit which permitted him to stay in Papua New Guinea during the period of his employment.

From the beginning of February 1979, for a period of about three months he assisted Mr. Roy Evara, the Minister for Primary Industry, in the running of his Department. Mr. Evara was appointed Minister in November 1978. He was new to the job. He had a lot to do but not enough time in which to do it. He had also a lot to complain about. He complained that his executive officer was not very helpful and that the civil servants in typical bureaucratic fashion would put papers in front of him and ask him to sign them saying they were urgent. He had no time to examine them. He signed them hardly knowing their contents. He was very confused. He wanted to be better organized so that he could be more efficient and discharge his duties more effectively. He approached the applicant who was a friend and had been a teacher. The applicant agreed to help him for three months on an ex gratia basis. Mr. Evara says that about two weeks later he asked the Prime Minister for permission to engage the applicant as a Ministerial aide, that the Prime Minister referred him to the Acting Secretary of his Department, Miss Kekedo, who directed that the applicant should be designated training officer in his establishment.

Mr. Evara was delighted with the work done by the applicant. The applicant had organized his office and arranged a time-table for him to adhere to. Some “wantoks” were sacked and new staff recruited and trained. Papers were now being presented with explanatory notes attached in ample time for him to read them and digest their contents. At last Mr. Evara felt that he was on top of his job and in real control of his Department.

However, if Mr. Evara was happy the Secretary of the Department, Mr. John Natera, was far from being happy. He found that the applicant had been provided with office space in the departmental headquarters. The applicant addressed memoranda to officers of the Department and signed them as “executive officer”. Many of these were sent directly to the officers and not through him (Mr. Natera) so that he was not always fully aware of what was going on. This was a most unsatisfactory state of affairs specially because, as Head of Department, he was responsible for all matters dealt with by the Department. All this had an adverse effect on morale within the Department. There was more. He found that the applicant was involving himself in matters which were not the responsibility of the Minister, that his appointment had not been approved by the Prime Minister under the Ministerial Personal Staff Act 1972, and that he had access to classified material although he had not been cleared for security and had not taken the oath of secrecy in compliance with the Act.

Mr. Natera complained to the Prime Minister and on 18th April, 1979, the Prime Minister wrote a letter to Mr. Evara which reads as follows:

“I am disturbed to hear rumours that you have engaged one, Ralph Premdas as your Executive Officer and I believe he has been on your staff for about 2 months now.

I have spoken to you on this matter before and here I am instructing you to terminate his services as from today 18th April, 1979.”

Mr. Evara says that on the receipt of this letter he cancelled a trip to the U.S.A. which he was in the process of arranging, flew to Wewak, where he met the Prime Minister, and obtained his approval to retain the applicant’s services. However, on 8th May, 1979, the Prime Minister addressed another letter to Mr. Evara in the following terms:

“I am disgusted to receive your letter of 19th April, 1979. The quality and the nature of affixing Mr. Doa’s signature to the letter is not acceptable to me from you or any other Ministers of my Government. In this regard I am returning your letter and keeping no copies.

May I remind you that Rabbie Namaliu is not a member of my political staff. Whilst in the same vein I want to advise you that I have party and political advisers outside the Government when like you and I consult from time to time with issues. However at no time do they see confidential information or see files or even interfere with how I run my Department or the Government for that matter.

Your attention is again drawn to my letter of 18th April, 1979. Let me state again that the presence of Dr. Ralph Premdas within the precincts of your office will not be tolerated. You can consult him outside of office hours.” [sic]

According to Mr. Natera the applicant continued to have access to the Minister’s office until 16th May, when the Minister left on an official visit to the U.S.A. The Minister returned on 23rd May and on 24th May the applicant was seen at the departmental headquarters at Konedobu removing documents from the Minister’s office to his own office.

On 31st May, 1979, Mr. Ebia Olewale, the Minister of Foreign Affairs and Trade, signed a notice under s. 7 of the Migration Act 1963, revoking the applicant’s entry permit. This notice was served on the applicant on 7th June, 1979. An accompanying letter written by Mr. K. G. Lifu, First Assistant (Immigration and Citizenship) Secretary of the Department of Foreign Affairs and Trade, informed him that as his entry permit had been revoked he was a prohibited immigrant and, if he failed to leave Papua New Guinea within four weeks, he would be deported. He was informed of his right to have the revocation of his entry permit reviewed by a Committee of Review. No reasons were given for the revocation of the entry permit.

On 11th June, 1979, the applicant wrote to Mr. Lifu requesting that his case be reviewed by a Committee of Review on some eleven grounds. He said he had not been guilty of any misconduct, no complaint had ever been made against him, he had never appeared in a court of law either as a litigant in civil proceedings or on a charge of having committed a criminal offence. He complained that he had not been given a fair trial and that the notice of revocation violated his basic rights and the principles of natural justice under the Constitution. He expressed the wish to appear before the Committee of Review.

On 19th June, 1979, he wrote another letter to Mr. Lifu. Among other things he said that Mr. Evara had asked him to assist him in the organization and administration of his Ministry for a limited period on an unpaid basis and that this had been done with the approval of the Prime Minister. A copy of this letter was sent to the Ombudsman Commission.

On 20th June, 1979, Miss Kekedo wrote to the applicant as follows:

“I write to advise you that the Committee of Review will meet to consider your application on Tuesday, 26th June 1979 at 10.00 am at the Conference Room, 9th Floor, Marea House, Waigani.

On 21st June, 1979, the applicant wrote to Miss Kekedo enclosing a copy of his letter to Mr. Lifu dated 19th June, and requesting particulars of the allegations in the third paragraph of her letter. He said he wished to appear personally before the Committee of Review.

Miss Kekedo replied by letter dated 22nd June, 1979, stating that having regard to the provisions of the Migration Act 1963 the Government was under no obligation to supply the information requested.

The Committee of Review appointed by the Prime Minister under the provisions of the Migration Act 1963 reviewed the Minister’s decision on 26th June, 1979. It considered the written submissions made by the applicant together with those of some ten other individuals and bodies. The applicant attended at the time and place fixed for the meeting of the Committee of Review but was not allowed to appear before it, nor apparently was anyone else.

The decision of the Committee was conveyed to the applicant by Mr. A. M. Siaguru, the Secretary of the Department of Foreign Affairs and Trade, by letter dated 28th June in the following terms:

“I have been instructed by the Minister for Foreign Affairs and Trade to advise you of the decision of the Committee of Review which met on 26th June, 1979 to consider your application for a review of the Notice of Revocation of your entry permit.

On 3rd July, 1979, the applicant brought an action against the State, the Minister for Foreign Affairs and Trade and the Committee of Review by a writ of summons seeking a declaration that the principles of natural justice guaranteed under the Constitution had been violated, that his rights and freedoms were in need of protection and should be enforced and for an order that he should not be deported. On the same day by notice of motion the applicant sought an interlocutory injunction restraining the Minister for Foreign Affairs and Trade from deporting him.

Both matters were heard by Pritchard J. the same afternoon and the following day. In addition to the two counsel, who appeared for the applicant and the respondents, Mr. Ignatius Kilage, the Chief Ombudsman, was present. He said that the Ombudsman Commission had been asked by the applicant to investigate his complaints but that the Commission had not had enough time to decide whether it had the power to do so.

As questions regarding the interpretation of the Constitution were involved the learned judge referred six questions, based on the arguments of counsel before him, to the Supreme Court pursuant to s. 18 of the Constitution.

I set out below one by one the questions asked together with my answers to them and my reasons for the answers.

Subsections (11), 12) and (13) of s. 37 of the Constitution are in the following terms:

(13) Nothing in Subsection (12) prevents a court or other authority from excluding from the hearing of the proceedings before it persons, other than the parties and their legal representatives, to such an extent as the court or other authority:

(a) is by law empowered to do and considers necessary or expedient in the interests of public welfare or in circumstances where publicity would prejudice the interests of justice, the welfare of persons under voting age or the protection of the private lives of persons concerned in the proceedings; or

(b) is by law empowered or required to do in the interests of defence, public safety or public order.”

The effect of these subsections is briefly this. A determination of the existence or extent of a civil right or obligation can only be made by an independent and impartial court or other authority prescribed by law or agreed upon by the parties. The proceedings for such a determination must be heard fairly and within a reasonable time. They must be held in public and, while in certain circumstances prescribed by law members of the public can be excluded, the parties and their legal representatives cannot be excluded.

The State does not dispute that the proceedings before the Minister and the Committee of Review were not held in compliance with the provisions of the three subsections: it is conceded that the proceedings were not held in public and the applicant was not allowed to be present either by himself or his legal representative. However, the applicant could insist on his rights under s. 37(11), (12) and (13) of the Constitution only if the Minister and the Committee of Review were determining the existence or extent of a civil right or obligation.

The words “civil right or obligation” are not defined. Section 37(11) and (12) are in similar terms to art. 6(1) of the European Convention on Human Rights and appear to have been derived from this article which says that:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

In Birdi v. Secretary of State for Home Affairs[cdxiv]²⁹ Lord Denning M.R. referring to art. 6(1) said:

“The words civil rights and obligations are used to denote the rights and obligations given by the civil law of the country. The Article does not extend to administrative procedures, such as licences given by a licensing authority, nor to the permissions given to aliens to enter a country. Nor does it apply to the leave given or refusal made under the Immigration Act, 1971.”

In the instant case the Minister was considering whether or not the applicant’s entry permit should be revoked and the Committee of Review were concerned with determining whether or not the Minister had made the right decision. The Minister and Committee of Review were not concerned with the applicant’s rights under the civil law but were concerned with making a decision under a public law. They were not determining the “existence or extent of a civil right or obligation”. They were acting in their administrative or executive capacity and, to use the words of Lord Denning in Birdi’s case[cdxv]³⁰, s. 37(11), (12) and (13) does not extend to such an administrative procedure. There has been no violation of the applicant’s fundamental rights under s. 37(11), (12) and (13).

Question 1 comprises several inter-related questions. My answer to each of them is “No.”

“Q2. Is the revocation of an entry permit under the Migration Act 1963 (as amended) with an accompanying threat of deportation, an actual or imminent infringement of the qualified rights set out in Sub-divn C of Divn 3 of Pt III of the Constitution and if so should that Act comply with the provisions of s. 38 of the Constitution?”

In order to answer this question it is necessary first to interpret s. 38 of the Constitution and ascertain what it sets out to do. As I understand this section, a law that is enacted to regulate or restrict the exercise of a right or freedom referred to in Sub-divn III.3.C (qualified rights) or to make reasonable provision for cases where the exercise of one such right may conflict with the exercise of another must comply with the following conditions:

(a) it must be expressed to be a law that is made for that purpose; and

(b) it must specify the right or freedom that it regulates or restricts; and

(c) it must be made, and certified by the speaker in his certificate under s. 110 to have been made, by an absolute majority.

Such a law can only be enacted to the extent that it is reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind. Section 38 mentions other matters which I do not propose to set out as they are not relevant for present purposes.

It is true that the Migration Act 1963, does not comply with the provisions of s. 38 of the Constitution. But it would have to comply with s. 38 only if any of the qualified rights mentioned in Sub-divn C had been regulated or restricted. The qualified rights have been detailed in Sub-divn C. I can find not a single right or freedom that has been regulated, restricted or in any way infringed either by the revocation of the entry permit or the threat of deportation, so called. The expression “threat of deportation” does not accurately express what the letter accompanying the notice of revocation said. This letter only pointed out the consequences that would lawfully follow if the applicant did not remove himself from the country within the time specified. This is hardly a threat. The Minister is under no obligation to inform the applicant that he will be deported if he does not leave within the time specified. If the applicant is unaware that he is liable to be deported the Minister is doing him a favour by telling him.

It is said on the applicant’s behalf that the right of liberty of the person under s. 42 and the right of freedom of employment under s. 48 have been violated. Section 42(1) protects the right to personal liberty or the right not to be arrested, detained or imprisoned except by due process of law. The applicant has not been deprived of his personal liberty. The rights referred to in the other subsections of s. 42 are the rights of persons under detention and other similar rights. As the applicant is not under detention the question whether any of these rights have been violated does not arise.

Section 48 refers to freedom of choice of employment which is something completely different from the right to employment. There is no right to employment conferred by the Constitution. If the applicant’s complaint is that in consequence of the revocation of his entry permit he cannot continue in his present employment that is another matter altogether and it is irrelevant.

My answer to question 2 is that none of the qualified rights set out in Sub-divn III.3.C have been infringed and it is not necessary that the Migration Act 1963, should comply with the provisions of s. 38 of the Constitution.

“Q3. In the circumstances of this case were the revocation of the entry permit by the Minister for Foreign Affairs and Trade and the subsequent confirmation of the Committee of Review unlawful acts within the meaning of s. 41 (proscribed acts) of the Constitution?”

Section 41 of the Constitution is in the following terms:

“(1) Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case:

(a) is harsh or oppressive; or

(b) is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or

(c) is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,

is an unlawful act.

(2) The burden of showing that Subsection (1)(a), (b) or (c) applies in respect of an act is on the party alleging it, and may be discharged on the balance of probabilities.

(3) Nothing in this section affects the operation of any other law under which an act may be held to be unlawful or invalid.”

The applicant maintains that having regard to the fact that his services were rendered free of charge, at the express invitation of the Minister and with the approval of the Prime Minister the revocation of his entry permit is harsh and oppressive or, alternatively, is not warranted by, or is disproportionate to, the requirements of the circumstances of his case. Mr. Evara has sworn an affidavit deposing that the applicant’s appointment had the approval of Miss Kekedo, the Acting Secretary of the Department, and of the Prime Minister. There have been no affidavits in reply either from Miss Kekedo or from the Prime Minister but the two letters from the Prime Minister to Mr. Evara would seem to suggest that the Prime Minister objected strongly to the physical presence of the applicant within the Department and the great latitude which had been allowed to the applicant. The applicant must have been aware of these letters but he chose to ignore the Prime Minister’s wishes right up to the eve of the service of the notice of revocation upon him. As a political scientist he should have known better.

According to Mr. Natera the applicant issued memoranda to various officers of the Department signed by him as “executive officer” and his presence and activities had a disturbing influence and affected morale in the Department.

Miss Kekedo’s letter to him dated 20th June, 1979, stated that the Minister had considered that his activities were “disruptive and detrimental to the good government of this country.”

The applicant was Chairman of the Political and Administrative Studies Department at the University and the Committee of Review would appear to have taken the view that his dual role as lecturer at the University and aide to the Minister could have led to a conflict of interest and a clash of loyalties.

The Prime Minister had told Mr. Evara on 18th April to terminate the applicant’s services. By 8th May he appears to have been furious that Mr. Evara had not got rid of the applicant and that he still had access to confidential material. Of course, the Prime Minister could have dismissed Evara as Minister but as he had only recently formed a new Coalition Government consisting of the Pangu Party and the United Party and while he himself was a member of the Pangu Party Mr. Evara was a member of the United Party, the Prime Minister may have had his difficulties. It might have been thought more politic to get rid of the applicant by revoking his entry permit. After all the decisions of Ministers are governed by policy and expediency and, the fact that this particular decision may have resulted in incidental, but not necessarily intentional, harshness to the applicant, is surely irrelevant.

Also in judging the Minister’s act the test must be objective and not subjective. It is not a question of whether the court thinks the Minister’s act was harsh and oppressive. The question is: did the Minister act within the scope of his responsibility for the good government of the country? See Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation[cdxvi]³¹ and Padfield v. Minister of Agriculture, Fisheries and Food[cdxvii]³². I believe he did.

I am of the view that the Minister’s decision cannot be challenged on this ground and I would answer question 3 “No.”

“Q4. Are the provisions of s. 61AA of the Migration Act 1963 (as amended) unconstitutional in that they purport to totally deprive a person the subject of any of the acts or decisions therein mentioned of access to the courts of Papua New Guinea on any ground whatsoever in relation to any such act or decision?”

The jurisdictions of the Supreme Court and the National Court are defined in ss. 162 and 166 respectively. Their relevant provisions are as follows:

“162. Jurisdiction of the Supreme Court

(1) The jurisdiction of the Supreme Court is as set out in:

(a) Subdivision II.2.C (constitutional interpretation); and

(b) Subdivision III.3.D (enforcement); and

and otherwise as provided by this Constitution or any other law.”

“166. Jurisdiction of the National Court

(1) Subject to this Constitution, the National Court is a court of unlimited jurisdiction.

(2) In particular, the National Court has the jurisdiction set out in:

(a) Section 22 (enforcement of the Constitution); and

(b) Subdivision III.3.D (enforcement); and

and otherwise as provided by this Constitution or any other law.”

It will be noticed that the jurisdictions set out in Sub-divn III.3.D and s. 155 are common to both the Supreme Court and the National Court. Subdivision III.3.D contains only two sections, namely ss. 57 and 58, and of these only s. 57(1) is relevant for present purposes. Section 57(1) provides as follows:

“A right of freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or an application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority.”

Similarly only sub-s. (4) of s. 155 is relevant for present purposes. This subsection is as follows:

“Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.”

Nowhere in the Constitution nor in any statute is there a provision for a right of appeal from a decision by a Minister made in his administrative capacity. Not only does the Migration Act 1963, not provide such a right of appeal but on the contrary it asserts that a decision of the Minister or Committee of Review is not “open to review or challenge in any court on any ground whatsoever.” The only right of appeal provided for by the Constitution is under s. 155(3)(a) which provides that “the National Court has an inherent power to review any exercise of judicial authority” (emphasis mine). But the proceedings before the Minister and the Committee of Review were an exercise of administrative or executive authority and not an exercise of judicial authority. Therefore, s. 155(3)(a) would have no application to the proceedings before the Minister and the Committee of Review, and, s. 61AA of the Migration Act 1963 would not be ultra vires s. 155(3)(a) of the Constitution.

Although vis-à-vis s. 155(3)(a) of the Constitution, s. 61AA of the Migration Act 1963 is valid the full extent of its validity can only be determined having regard to other provisions of the Constitution. In this regard s. 57(1) and s. 10 are relevant. Section 57(1) has been set out earlier and s. 10 provides as follows:

“All written laws (other than this Constitution) shall be read and construed subject to:

(a) in any case — this Constitution; and

(b) ...

and so as not to exceed the authority to make them properly given, to the intent that where any such law would, but for this section, have been in excess of the authority so given it shall nevertheless be a valid law to the extent to which it is not in excess of that authority.”

Therefore, s. 61AA of the Migration Act 1963 must be read subject to s. 57(1) of the Constitution.

Under s. 57(1) of the Constitution both the National Court and the Supreme Court have not only the right but the duty to protect and enforce the Constitutional rights and freedoms and s. 155(4) confers upon both the National and the Supreme Court powers to make orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case. It follows that if there is no challenge on constitutional grounds there can be no appeal either from the decision of the Minister or the Committee of Review. But if there is a complaint that rights under the Constitution have been infringed the person aggrieved is entitled to come to the courts in order to enable them to inquire and ascertain whether he has any such rights and, if it is found that he does have such rights, the courts have a duty to give him relief if there has been an infringement of any of those rights.

Therefore, my answer to question 4 is that whilst s. 61AA of the Migration Act 1963 is not unconstitutional, having regard to the provisions of s. 57(1) of the Constitution it must be read down.

The applicant in his letter to Mr. Lifu dated 11th June, 1979, had complained that the principles of natural justice had not been observed when the notice of revocation of the entry permit had been issued and, in the action which he subsequently brought, he said that the principles of natural justice guaranteed under the Constitution had been violated and his rights and freedoms were in need of protection and should be enforced. The learned judge who dealt with the matter in the National Court has not included among the questions referred to this court the question whether the applicant’s rights under natural justice had been infringed — possibly through an oversight. It is necessary to enquire whether the rules of natural justice are applicable in the instant case and, if so, whether they have been violated.

It is possible that the principles of natural justice are part and parcel of the protection of the law guaranteed by s. 37 of the Constitution by virtue of s. 37(21) (a) which says that “nothing in this section derogates Division III.4 (principles of natural justice).” Section 59 of the Constitution says that “the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.” I am not sure whether this means that the principles of natural justice are part of our law by virtue of Sch. 2.2 of the Constitution whereby English common law (with certain limitations) has been made part of the underlying law in Papua New Guinea, for the reason that while in s. 59 of the Constitution the word “developed” is used in Sch. 2.2 the word “adopted” is used. It is likely that what is meant is that the principles of natural justice are the English rules of natural justice adopted under Sch. 2.2 and developed under Sch. 2.3 development, etc., of the underlying law and s. 60 development of principles (of natural justice). Whatever s. 59 may mean I am confident that the principles of natural justice in force in England as at Independence Day are part of our underlying law by virtue of Sch. 2.2 of the Constitution.

The applicant’s complaint is that there has been an infringement of the principle “audi alteram partem” or the right to be heard or make representations. There are only two instances in the Constitution where the rules of natural justice are made to apply. They are (1) to proceedings before independent tribunals established under the Leadership Code: s. 28(5), and (2) to proceedings before village courts: s. 37(22). For their application to other cases it is necessary to look to the common law of England. There is a wealth of authority for the proposition that in England the decision of immigration officers and the Secretary of State for Home Affairs with regard to the entry and expulsion of aliens are administrative acts and not subject to the principles of natural justice.

Thus the following passages from the judgment of the Earl of Reading C.J., appears in R. v. Inspector of Leman Street Police Station; Ex parte Venicoff[cdxviii]³³:

“I therefore come to the conclusion that the Home Secretary is not a judicial officer for this purpose, but an executive officer bound to act for the public good, and it is left to his judgment whether upon the facts before him it is desirable that he should make a deportation order. The responsibility is his.

It was also contended that if upon the true construction of art. 12 the Home Secretary is not bound to hold an inquiry, the article is ultra vires, because it is against natural justice. I cannot agree, for the reasons I have already expressed. As soon as we come to the conclusion that this is an executive act left to the Home Secretary and is not the act of a judicial tribunal, the argument fails.”

Venicoff’s case[cdxix]³⁴ was cited with approval in R. v. Governor of Brixton Prison; Ex parte Soblen[cdxx]³⁵. Lord Denning M.R. said[cdxxi]³⁶:

“The third ground of challenge was that it was said that the Home Secretary could not make a deportation order unless he had first given the person affected the opportunity to be heard, and in this case the Home Secretary had made this deportation order against Dr. Soblen without any such opportunity being given. I quite agree that when a public officer is given the power to deprive a person of his liberty or his property, the general principle of our law is that that is not to be done without his first being given an opportunity of being heard and of making representations on his own behalf. That has been the tenor of the decision of these courts for nearly one hundred years. But there are exceptions. A statute may expressly or by necessary implication provide that the person affected is not to be given a right to be heard. Such an exception has been held to exist in the case of deportation orders. In 1920 it was held by a Divisional Court in R. v. Leman Street Police Station Inspector; Ex parte Venicoff[cdxxii]³⁷ that an alien has no right to be heard before a deportation order is made against him.”

In Re Marles’ Application[cdxxiii]³⁸ MacDuff J. said:

“Finally, we are satisfied that there was no denial of natural justice on the consideration of the appeal by the Minister. As we have already pointed out there was no lis between the applicant and the Principal Immigration Officer. There was therefore no appeal intra-partes and it is clear that the appeal was considered in the nature of a re-hearing by the Minister in the light of the facts of the application and in the light of policy and expediency and the extraneous matters which the Minister, functioning administratively, was entitled to consider. The complaint that the applicant was not allowed to appear before the Minister is not strictly correct. The Minister declined to allow his advocate to appear on his behalf but did not refuse to allow an appearance by the applicant personally. The Ordinance does not make it incumbent upon the Minister to allow such an appearance, which is a matter solely in his discretion.”

In Pearlberg v. Varty (Inspector of Taxes)[cdxxiv]³⁹ Lord Pearson said:

“But where some person or body is entrusted by Parliament with administrative or executive functions, there is no presumption that compliance with the principles of natural justice is required ...”

In Schmidt v. Secretary of State for Home Affairs[cdxxv]⁴⁰, Ungoed-Thomas J. said:

“Thirdly, the plaintiffs say that the defendant has offended against the rules of natural justice in making his policy decision and in concluding that the plaintiffs should not have their stay extended. It seems to me clear beyond argument, in view of the decisions and judgments, particularly of Lord Denning M.R. in R. v. Governor of Brixton Prison; Ex parte Soblem[cdxxvi]⁴¹, that a deportation order under the Aliens Order is not a judicial or a quasi-judicial act, but is an administrative act. In Re H.K. (An Infant)[cdxxvii]⁴², likewise concluded that the decision of an immigration officer is an administrative act. It is firmly established that the rules of natural justice, at any rate as ordinarily understood, do not apply to such acts.”

Lord Denning M.R. said[cdxxviii]⁴³:

“The third point is whether there is any ground for saying that the Home Secretary did not observe the precepts of natural justice. Mr. Quinton Hogg submitted that the Minister ought to have given the students a hearing before he refused to extend their stay in this country. I see no basis for this suggestion. I quite agree, of course, that where a public officer has power to deprive a person of his liberty or his property, the general principle is that it is not to be done without his being given an opportunity of being heard and of making representations on his own behalf. But in the case of aliens, it is rather different: for they have no right to be here except by licence of the Crown. And it has been held that the Home Secretary is not bound to hear representations on their behalf, even in the case of a deportation order, though, in practice he usually does so. It was so held in R. v. Leman Street Police Station Inspector and Secretary of State for Home Affairs; Ex parte Venicoff[cdxxix]⁴⁴, which was followed by this court in Soblen’s case[cdxxx]⁴⁵.”

In fairness to the applicant I should mention that Lord Denning went on to say[cdxxxi]⁴⁶:

“Some of the judgments in those cases were based on the fact that the Home Secretary was exercising an administrative power and not doing a judicial act. But that distinction is no longer valid. The speeches in Ridge v. Baldwin[cdxxxii]⁴⁷ show that an administrative body may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations. It all depends on whether he has some right or interest, or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say. Thus in Re H.K. (An Infant)[cdxxxiii]⁴⁸ a Commonwealth citizen had a right to be admitted to this country if he was (as he claimed to be) under the age of sixteen. The immigration officers were not satisfied that he was under sixteen and refused him admission. Lord Parker C.J.[cdxxxiv]⁴⁹ held that, even if they were acting in an administrative capacity, they were under a duty to act fairly — and that meant that they should give the immigrant an opportunity of satisfying them that he was under sixteen.”

The important words in the passage cited above are those emphasised by me.

It is clear that Lord Denning is saying inter alia that whilst Ridge v. Baldwin[cdxxxv]⁵⁰ is authority for the proposition that a person who has a right or interest must be given the opportunity of making representations he himself is of the opinion that a person who has a legitimate expectation should also have the opportunity of making representations. He has introduced a new concept which I shall hereafter refer to compendiously as “the legitimate expectation principle”. He is aware that he has done so. He uses the words “or, I would add”. He enlarges upon this new concept further in the same passage and this time uses the words “I think”. He says[cdxxxvi]⁵¹:

“If his permit is revoked before the time limit expires, he ought, I think, to be given an opportunity of making representations: for he would have a legitimate expectation of being allowed to stay for the permitted time.”

The facts in Schmidt’s case[cdxxxvii]⁵² are as follows: Schmidt was an American citizen and a student at the Hubbard College of Scientology in England. It was the policy of the Home Office in administering the Aliens Order, 1953, to allow an alien to enter the country if he came for the purpose of full-time study at a recognised educational establishment. The College of Scientology was such an establishment for the purposes of that policy until the Government decided that Scientology was a pseudo-philosophical cult which was socially harmful and that foreign nationals already in the United Kingdom for study at a Scientology establishment would not be granted extension of stay to continue their studies. The Home Office refused to extend Schmidt’s entry permit. He brought an action against the Home Secretary claiming a declaration that the Home Secretary’s decision not to consider further his application to stay was unlawful and that the defendant was bound to consider such an application on its merits in accordance with the principles of natural justice. The statement of claim was struck out as an abuse of the process of the court and the action was dismissed. Schmidt’s appeal to the Court of Appeal was also dismissed.

In the instant case the applicant had his entry permit revoked before the time limit had expired and, if Lord Denning is right in his formulation of the legitimate expectation principle, the applicant should have had an opportunity of making representations both before the Minister and the Committee of Review. But in Schmidt’s case[cdxxxviii]⁵³ there had been a refusal to extend his entry permit not a revocation before it had expired. Both his action in the lower court and his appeal to the Court of Appeal had been dismissed so that for the purposes of deciding Schmidt’s case[cdxxxix]⁵⁴ it was totally unnecessary to formulate the legitimate expectation principle. The other two judges of the Court of Appeal, namely, Russell L.J. and Widgery L.J., as he then was, made no reference to the legitimate expectation principle.

Reference has been made to this principle in Birdi’s case[cdxl]⁵⁵. In this case the Home Secretary had declared an amnesty and announced that Commonwealth citizens and citizens of Pakistan who had entered the United Kingdom illegally before 1st January, 1973, would be given indefinite leave to remain on application to the Home Office and verification of the facts. Birdi made an application to the Home Office and after an enquiry into the facts the Home Office were not satisfied that Birdi had entered the United Kingdom before 1st January, 1973. He was refused leave to stay, was arrested and detained with a view to being deported. His application to the Court of Appeal for a writ of habeas corpus was dismissed.

Lord Denning after citing a passage from his own judgment in Schmidt’s case[cdxli]⁵⁶ said[cdxlii]⁵⁷:

“If he was here before the 1st January, 1973, he would certainly have a legitimate expectation that the amnesty would be exercised in his favour and then, having that legitimate expectation, it would be right that representations should be considered honestly and fairly.”

Geoffrey Lane L.J., after citing another passage from Lord Denning’s judgment in Schmidt’s case[cdxliii]⁵⁸ said[cdxliv]⁵⁹:

“It (the Secretary of State’s announcement) conferred no right on the applicant but gave him an expectation that the facts of his case would be examined administratively and if he satisfied the burden of proof which lay upon him the Secretary of State might exercise his discretion to give him leave to remain.”

So here we have a situation where Lord Denning having first enunciated the legitimate expectation principle in Schmidt’s case[cdxlv]⁶⁰ on the basis that a person who had his entry permit revoked before the time limit had expired would have a legitimate expectation of being allowed to stay for the permitted time extends the principle in Birdi’s case[cdxlvi]⁶¹ to include the case of a Commonwealth citizen or citizen of Pakistan who entered the United Kingdom before 1st January, 1973, — this time on a different basis, namely, that he would have a legitimate expectation that the amnesty would be exercised in his favour. This time he had the support of Geoffrey Lane L.J.

Birdi’s application to the Home Office failed because the Home Office were not satisfied that he was eligible to benefit under the terms of the amnesty. The Court of Appeal found no fault with the Home Office decision and dismissed Birdi’s application for a writ of habeas corpus. Although there were allegations that the immigration officers had not acted fairly the Court of Appeal were satisfied that they had acted fairly. It was not necessary, therefore, to formulate the legitimate expectation principle for the purpose of making a decision in the case.

Lord Denning’s observations regarding the legitimate expectation principle both in Schmidt’s case[cdxlvii]⁶² and in Birdi’s case[cdxlviii]⁶³ would appear to have been made obiter.

On the question of obiter dicta the speech of Viscount Haldane in Cornelius v. Phillips[cdxlix]⁶⁴ is illuminating. He said[cdl]⁶⁵:

“... and even if the dicta relied on by the majority in the Court of Appeal can be read as covering it in words, which I greatly doubt, they were not part of the decision, and I wish to add that dicta by judges, however eminent, ought not to be cited as establishing authoritatively propositions of law unless these dicta really form integral parts of the train of reasoning directed to the real question decided. They may, if they occur merely at large, be valuable for edification, but they are not binding.”

And in Flower v. Ebbw Vale Steel, Iron & Coal Co. Ltd.[cdli]⁶⁶ Talbot J. said[cdlii]⁶⁷:

“It is of course perfectly familiar doctrine that obiter dicta, though they may have great weight as such, are not conclusive authority. Obiter dicta in this context means what the words literally signify — namely, statements by the way. If a judge thinks it desirable to give his opinion on some point which is not necessary for the decision of the case, that of course has not the binding weight of the decision of the case and the reasons for the decision.”

It follows, that if obiter dicta are not binding they cannot override the authority of decided cases.

For these reasons I am of the view that the principles of natural justice had no application to the proceedings before the Minister and the Committee of Review and, therefore, the applicant had no right to be heard or to make representations. (In fact the applicant did make representations to the Committee of Review but was denied the opportunity of making representations to the Minister.)

“Q5. Depending upon the answers to the four preceding questions, should the revocation of the entry permit giving rise to this reference be quashed or otherwise dealt with by the Supreme or National Courts in accordance with either s. 22, s. 57 or s. 155 (4) of the Constitution?”

My answer to question 5 is that the revocation of the entry permit was properly made by the Minister and must stand.

“Q6. In view of doubt expressed before me at the hearing of the subject application for injunction are the decisions of the Minister for Foreign Affairs and Trade and of the Committee of Review above referred to within the investigatory powers of the Ombudsman Commission pursuant to s. 219 of the Constitution?”

Both counsel agree that the Ombudsman Commission had power to investigate the decisions of the Minister and the Committee of Review. Having regard to our decision that the revocation of the entry permit was properly made this question now is only of academic interest and, in view of the fact that it has not been argued before us, I hesitate to answer it. Whether the Ombudsman Commission has or has not the power to investigate such cases is a matter for future consideration if and when the question arises. There is no need for the Ombudsman Commission to investigate the present case because the reference to the Commission has been overtaken by events — the reference to and the decision of the Supreme Court.

The Migration Act 1963, undoubtedly places restrictions on aliens. An alien cannot enter Papua New Guinea unless he holds an entry permit. When this expires he must leave and, if he does not leave, he can be deported. His entry permit is liable to be revoked at the discretion of the Minister. These restrictions on aliens are not peculiar to Papua New Guinea. Practically every country in the world has passed laws to regulate the entry of aliens into their country, to decide for how long and under what conditions they should be permitted to stay and to provide for their expulsion if they are considered undesirable. This is because entry by an alien and his stay in a country are not rights but privileges. An alien enters a country and stays therein not by right but by licence. There are many cases in common law countries in support of this doctrine.

In Attorney-General for the Dominion of Canada v. Cain[cdliii]⁶⁸, the judgment of the Privy Council contains the following passage from Vattel, Law of Nations, book 1, s. 231; book 2, s. 125[cdliv]⁶⁹:

In Re Marles’ Application[cdlv]⁷⁰, MacDuff J. said[cdlvi]⁷¹:

“Immigration is, and we think must always be, a jealously guarded privilege, and it would seem that the fact that it is a privilege, and not a right, is often overlooked.”

In R. v. Governor of Brixton Prison; Ex parte Soblen[cdlvii]⁷² Lord Denning M.R. said[cdlviii]⁷³:

“Although every alien, as soon as he lawfully sets foot in this country, is free, nevertheless the Crown is entitled at any time to send him home to his own country, if in its opinion his presence here is not conducive to the public good; and it may for this purpose arrest him and put him on board a ship or aircraft bound for his home country. That was clearly the law under the Aliens Order, 1916, as interpreted by this court in 1917 in R. v. Secretary of State for Home Affairs; Ex parte Duke of Chateau Thierry[cdlix]⁷⁴ and in 1918 in R. v. Chiswick Police Station Superintendent; Ex parte Sacksteder[cdlx]⁷⁵, and it is clear now under the Aliens Order of 1953. It is unnecessary to go into the state of the law before the Aliens Orders. I always understood that the Crown had a Royal Prerogative to expel an alien and send him home whenever it considered that his presence here was not conducive to the public good. Sir William Blackstone certainly said in his Commentaries — (1765), vol. 1, pp. 259-260: ‘Strangers who come spontaneously’ are ‘liable to be sent home whenever the King sees occasion.’ And this view is in accord with international law as stated by the law officers of the Crown (Sir Richard Webster A.-G., and Sir Robert Finlay S.-G.) in 1896 in Thomas Mann’s case[cdlxi]⁷⁶. It seems clear from that case that by international law any country is entitled to expel an alien if his presence is for any reason obnoxious to it; and as incidental to this right, it can arrest him, detain him, and put him on board a ship bound for his own country.”

In Schmidt v. Secretary of State for Home Affairs[cdlxii]⁷⁷, Lord Denning M.R. said[cdlxiii]⁷⁸:

“I have always held the view that at common law no alien has any right to enter this country except by leave of the Crown: and the Crown can refuse leave without giving any reason. The common law has now been overtaken by the Aliens Acts and the Orders thereunder.”

Schedule 1.3 of the Constitution provides that the preamble to the Constitution may be used as an aid to interpretation in cases of doubt. As there was no doubt in my mind there was no need for me to use the preamble in this way. Similarly, as I was able to interpret the various provisions of the Constitution by giving words their plain and ordinary meaning it was not necessary to use the report of the Constitutional Planning Committee as an aid to interpretation as provided for by s. 24.

WILSON J: The Migration Ordinance 1963, when it was assented to on 24th October, 1963, was an Ordinance of the Territory of Papua New Guinea relating to immigration, deportation and emigration. That Ordinance was subsequently amended in 1967 and 1969. It became the Migration Act 1963-1969. It was further amended in 1975 and 1978. As a consequence of the 1975 amendment, the Act no longer relates to deportation in the conventional sense. Sections 12 and 13 were repealed. They related primarily to the deportation of certain persons who had not been born in Papua New Guinea who had been convicted of a sufficiently serious offence or who had been an inmate of a mental hospital or public charitable institution, certain persons who because of their conduct were not to be allowed to remain in the country, and certain persons who advocated the overthrow by force or violence of the established Government or of all forms of law or the advocates of other anti-social practices. In place of the old provisions relating to deportation a procedure relating to the revocation of entry permits of non-nationals and the review of such revocations was enacted. The old procedure remained for the deportation of prohibited immigrants.

As a consequence of the amendments there are now three categories of non-nationals who may be deported as prohibited immigrants; first the non-national who, not being the holder of an entry permit that is in force, enters or remains in Papua New Guinea (s.6(1)); secondly the non-national whose entry permit has expired (s.7(3)); and, thirdly, the non-national whose entry permit has been revoked (s.7(3)). There still remain a number of exemptions.

The respondent in these proceedings, the Independent State of Papua New Guinea (hereinafter called “the Government”), maintains that the applicant, Dr. Ralph Rakhinand Premdas, (hereinafter called “Dr. Premdas”), who is a non-national, is a prohibited immigrant, is required to leave Papua New Guinea, and is liable to deportation. Dr. Premdas is a lecturer in politics and Chairman of the Political and Administrative Studies Department at the University of Papua New Guinea. He is an American citizen under contract to the University, such contract having been renewed up until 1982. Until its revocation, he was the holder of an entry permit which entitled him to remain in Papua New Guinea during his employment.

On 31st May, 1979, the Minister for Foreign Affairs and Trade, exercising the powers vested in him by s. 7 of the Act, revoked Dr. Premdas’ entry permit, the revocation to be effective upon service of the notice of revocation.

On 6th June, 1979, Mr. K. G. Lifu, the First Assistant Secretary (Immigration and Citizenship) of the Department of Foreign Affairs and Trade, wrote to Dr. Premdas informing him that, as his entry permit had been revoked, he was now a prohibited immigrant within the meaning of the Act, and that he was liable to deportation. Mr. Lifu informed Dr. Premdas that, if he did not leave Papua New Guinea within four weeks of the date of that letter, deportation would follow. Mr. Lifu also referred Dr. Premdas to his rights under s. 7 of the Act to have the revocation reviewed by a Committee of Review.

On 11th June, 1979, Dr. Premdas wrote to Mr. Lifu requesting that his case be reviewed by a Committee of Review and setting out some eleven grounds upon which such request was made. The details of these grounds are irrelevant except to say that Dr. Premdas did claim inter alia that he had never been guilty of any misconduct that he had never been convicted of any criminal offence, that he had not been given an opportunity of a fair trial, and generally that the deportation notice violated the Constitution, in particular Pt 111, Divn 3 (basic rights) and Divn 4 (principles of natural justice). Dr. Premdas said he would be pleased to appear before the Committee of Review.

On 19th June, 1979, Dr. Premdas wrote another lengthy letter to Mr. Lifu speculating upon the possible reasons for the revocation and advancing many arguments against them. The details of this letter are again irrelevant except to say that one of the matters raised was Dr. Premdas’ admitted involvement in the affairs of the Department of Primary Industry between February and May of this year. The claim made by Dr. Premdas was that he was asked by the Minister for Primary Industry, Mr. Roy Evara, to assist him in the organization and administration of that Ministry for a limited period, on an advisory and unpaid basis, and that such a proposal was “cleared by” the Prime Minister. A copy of this letter was sent to the Ombudsman Commission.

Under the Migration Act 1963 a Committee of Review is appointed by the Prime Minister (s. 7(1c)). On 20th June, 1979, Miss J. L. Kekedo, the Acting Secretary of the Department of the Prime Minister, wrote a letter to the applicant which (omitting formal parts) was in the following terms:

“I write to advise you that the Committee of Review will meet to consider your application on Tuesday, 26th June 1979 at 10.00 am at the Conference Room, 9th Floor, Marea House, Waigani.

I am instructed to advise you that the main reason for the revocation of your entry permit is that the Government will not allow non-citizens to remain in Papua New Guinea, who involve themselves in activities which it considers to be disruptive and detrimental to the good government of this country, and, in particular, your unauthorised involvement and intrusion into the management of the Department of Primary Industry.”

It is to be observed in passing that no reason involving national security or “the sovereignty of the nations” was given or implied.

On 21st June, 1979, Dr. Premdas wrote to Miss Kekedo enclosing his letter of 19th June and requesting particulars of the allegations made in the third paragraph of her letter of 20th June. In addition Dr. Premdas requested that he be given the opportunity of personally appearing before the Review Committee at the time and place appointed.

On 22nd June, 1979, Miss Kekedo replied to Dr. Premdas acknowledging receipt of his letter of 21st June and its contents. She stated that, having considered the provisions of the Migration Act 1963 there was no necessity for the government to reply to a request for information.

On 26th June, 1979, Dr. Premdas attended at the time and place fixed for the meeting of the Review Committee but was not allowed to appear personally before it. The Committee comprised the Minister for Commerce, Sir Pita Lus, the Minister for Decentralization, Fr. John Momis, and the Minister for Health, Mr. Raphael Doa.

On 28th June, 1979, the decision of the Review Committee was communicated to Dr. Premdas by letter from Mr. A. M. Siaguru, the Secretary for the Department of Foreign Affairs and Trade. That letter (omitting formal parts) was in the following terms:

“I have been instructed by the Minister for Foreign Affairs and Trade to advise you of the decision of the Committee of Review which met on 26th June 1979 to consider your application for a review of the Notice of Revocation of your entry permit.

Therefore, in accordance with the Notice of Revocation of Entry Permit dated 31st May 1979 and the subsequent letter of 6th June 1979 from the First Assistant Secretary Immigration and Citizenship Division of this Department, you are required to depart from Papua New Guinea on or before 4th July 1979.”

The decision of the Minister to revoke Dr. Premdas’ entry permit and the subsequent upholding by the Committee of Review of the revocation of the entry permit not surprisingly sparked off a controversy. This decision, as with many decisions involving the deportation or threatened deportation of aliens who neither have committed a serious crime nor have posed a threat to national security, aroused emotional feelings. An apparent conflict arose between the public interest (as the Government of the day perceived it) on the one hand and the freedom of the individual on the other. Another important question which arose was whether the balance between these two is for the courts or for the government. Non-nationals holding entry permits and especially those under contract felt insecure and might well have been pardoned for believing that this was “the thin end of the wedge” in a move to reduce foreign influence and to remove from Papua New Guinea aliens who are serving this country, even those under contract here.

No question arose (and this was strongly confirmed by Dr. Premdas’ counsel in these proceedings) as to whether or not the Government has power to determine which foreigners it wants in its country and which it wants to leave. That the government has such power is beyond debate.

What did arise was a hostile (perhaps even hysterical) reaction from those, on the one hand, who characterized Dr. Premdas’ subsequent attempts to resist moves to have him leave Papua New Guinea as a threat to the sovereignty of the nation, and from those, on the other hand, who saw implications (both for the individual and the nation) in the Government’s apparent determination to deport a non-national who was of unquestioned competence as a political scientist, who had been the holder of an unexpired entry permit, and who was bound by an uncompleted contract of employment, all at a time when Papua New Guinea is still very much dependent for expertise and skilled manpower on those who are variously called non-nationals, expatriates, aliens, and foreigners.

On 3rd July, 1979, Dr. Premdas instituted an action in the National Court by way of summons seeking a declaratory order that the principles of natural justice guaranteed in the Constitution had been violated and that Dr. Premdas’ rights and freedoms were in need of protection and enforcement and for an order that Dr. Premdas not be forcibly removed from Papua New Guinea. The first defendant named was the State, the second the Minister for Foreign Affairs and Trade and the third the Review Committee comprising the three above named Ministers.

On the same day by notice of motion Dr. Premdas sought an interlocutory injunction restraining the Minister for Foreign Affairs and Trade from effecting the imminent deportation. The application came on for hearing before Pritchard J.

On 4th July, 1979, Pritchard J. made an order restraining the Minister for Foreign Affairs and Trade from effecting the deportation of Dr. Premdas until Friday, 3rd August, 1979, being the last day of the Supreme Court sittings commencing on 30th July, subject to the right of the Supreme Court to vary the order in any way it thought fit. Being of the opinion that questions relating to the interpretation or application of the Constitution had arisen in the proceedings before him, his Honour thereupon referred the matter to the Supreme Court and, to that end, directed that immediate steps be taken to bring the matter before the Supreme Court.

The questions which were referred to the Supreme Court pursuant to s. 18 of the Constitution are set out in the judgment of the learned Chief Justice and need not be repeated in this judgment, although reference will be made to them later.

It seems to me that the most important question arising for determination on this reference is whether Dr. Premdas had, at the time of the revocation of his entry permit by the Minister and/or at the time of the review of the revocation by the Committee of Review, any kind of right or interest or legitimate expectation and, if so, whether the Minister and/or the Committee of Review were under a duty to act fairly and therefore to apply the principles of natural justice.

It is not clear from the material placed before this Court whether Dr. Premdas was given a right to be heard by the Minister or whether the proceedings before the Minister, including the announcement of his decision, were held in public. It is likewise not apparent whether Dr. Premdas was present at the hearing of the proceedings before the Minister. If any of these things were not so, then it must be concluded that the Minister failed to act fairly and therefore conducted the proceedings before him in a manner contrary to the principles of natural justice. There is nothing before this Court to suggest that the exercise of the Minister’s decision was biased, arbitrary or capricious and that, on that account, there was any non-compliance with the principles of natural justice.

There is no doubt in my mind from the material placed before this Court that the Committee of Review failed to act fairly and, therefore, conducted the proceedings before it in a manner contrary to the principles of natural justice. I so conclude having regard to “the rules of the underlying law known as the principles of natural justice developed for the control of judicial and administrative proceedings” (see s. 59 of the Constitution). I will make further reference later in this judgment to that section of the Constitution. The proceedings before the Committee of Review were conducted in a manner contrary to the principles of natural justice in that they were not held in public, in that Dr. Premdas was excluded from the hearing, in that the Committee of Review which was appointed to review the Minister’s notice of revocation, being constituted of three other Ministers, was biased in that it might reasonably be apprehended or suspected by fair-minded persons that the Committee might not resolve the question before it with a fair and unprejudiced mind (R. v. Watson; Ex parte Armstrong[cdlxiv]⁷⁹).

But, is a Committee of Review, appointed under s. 7(1c) of the Migration Act 1963 charged with the responsibility of reviewing the Minister’s notice of revocation and deciding whether or not to uphold the Minister’s decision to revoke an entry permit, bound to follow the requirements of natural justice?

In order to find the answer to this question one needs to interpret the provisions of the Constitution itself. For the purpose of the interpretation of the Constitution the provisions of Sch. 1 (Rules for Shortening and Interpretation of the Constitutional Laws) apply and, subject to that schedule, the underlying law applies (see s. 8 of the Constitution). In interpreting the meaning of the language used in the Constitution it is necessary to read the Constitution, being a constitutional law in itself, as a whole (see Sch. 1.5(1) of the Constitution) and to give to all provisions thereof and all words, expressions and propositions therein “their fair and liberal meaning” (see Sch. 1.5(2) of the Constitution). As there can be no doubt as to the interpretation of the provisions to which reference will be made, (i.e. this is not a “case of doubt”), I find it unnecessary (indeed I think it inappropriate) to use the preamble to the Constitution and, in particular, the national goals and directive principles “as an aid to interpretation” and, in any event, the preamble, although forming part of the Constitution, “must be read subject to any other provision” of the Constitution (see Sch. 1.3(1) of the Constitution). As there appear to me to be rules of law that are “applicable and appropriate to the circumstances” of this country, it is not part of this Court’s duty to have particular regard to the national goals and directive principles and the basic social obligations (see Sch. 2.3(1) (a)), although, as I have stated, the preamble forms part of the Constitution. As, on the authorities and having regard to the Constitution itself, there can be no doubt as to the interpretation or application of any of the provisions of the Constitution to which reference will be made, I find it unnecessary (indeed I think it inappropriate) to use the final report of the pre-Independence Constitutional Planning Committee dated 13th August, 1974, and presented to the pre-Independence House of Assembly on 16th August, 1974, as an “aid to interpretation” (see s. 24 of the Constitution).

The only question relating to the interpretation or application of the Constitution which calls for the use of materials as aids to interpretation arises after observing that the Constitution guarantees to the people the right to be accorded natural justice in proceedings whether judicial or administrative as applied under the common law in England immediately before Independence Day. That question is whether or not a foreign alien who is the holder of an entry permit but who has his entry permit revoked before the time limit thereof has expired, is being deprived of a “right or interest or legitimate expectation”. These words are not to be found in the Constitution itself. They are the language of the common law and equity. The aids to interpretation of these words are the ordinary rules of interpretation developed within the common law and equity. No assistance in this respect can legitimately be gained from using official records of debates, votes and proceedings, reports etc. (see s. 24 of the Constitution) or from applying the rules for interpretation of constitutional laws in Sch. 1 to the Constitution.

Under the Constitution there are three types of proceedings which are expressly subject to the principles of natural justice:

(1) Proceedings before independent tribunals established to investigate and determine cases of alleged or suspected misconduct in office under the Leadership Code (s. 28(5) of the Constitution).

(2) Proceedings before village courts (s. 37(22) of the Constitution).

(3) Judicial and administrative proceedings to which the principles of natural justice applied immediately before Independence Day under the common law and equity in England as adopted as part of the underlying law (s. 20, s. 59 and Sch. 2.2(1) of the Constitution).

It is to be observed that, although there are situations in which it is contemplated that such principles and rules of the common law and equity in England will not apply, e.g. where they are inconsistent with a constitutional law or a statute (Sch. 2.2(1)(a)) or where they are inapplicable or inappropriate to the circumstances of the country from time to time (Sch. 2.2(1)(6)), there is nothing in the Migration Act 1963 from which an intention to preclude the principles of natural justice may be inferred thereby giving rise to inconsistency, and no circumstances (except perhaps those circumstances which gave rise to the recent declaration of a state of emergency in the Highlands) exist at this time in this country, whose people established adopted and gave to themselves as recently as 16th September, 1975, a Constitution which embodies certain human rights and fundamental freedoms, which would justify the conclusion that the principles of natural justice are inapplicable or inappropriate. To assert that the Constitution limits the application of the principles of natural justice to tribunals under the Leadership Code, to village courts and to courts or other tribunals which “determine the existence or extent of a civil right or obligation” is to suppose that the drafters of the Constitution intended thereby to exclude an important common law principle that had developed and applied at Independence. In the absence of clear words of exclusion I cannot believe that that was the intention. If such was the intention, why were the words “and administrative” included in s. 59(1) of the Constitution? If such was the intention, those words are redundant.

If the legislature had intended, by the 1975 amendment of the Migration Act 1963, to deprive all non-nationals holding entry permits issued for a period of more than six months who have had their entry permits revoked by the Minister of the right to be accorded the principles of natural justice (thereby overriding, by statute, part of the common law) one would have expected them to have done so expressly or, indeed, to have done so by not providing any review procedure and by using the wording of s. 7(1) to apply to all holders of entry permits, viz. by providing that “the Minister may, in his absolute discretion revoke any entry permit”.

It is well recognised that an intention to exclude the rules of natural justice “is not to be assumed nor is it to be spelled out from indirect references, uncertain inferences or equivocal considerations” (Commissioner of Police v. Tanos[cdlxv]⁸⁰, per Dixon C.J. and Webb J.). Stephen J., in Salemi v. MacKellar (No. 2)[cdlxvi]⁸¹, said of that passage:

“In citing this passage from Tanos’ case[cdlxvii]⁸² Lord Wilberforce, in Wiseman v. Borneman[cdlxviii]⁸³, said that it has always been insisted that any exclusion of the rules of natural justice must be done clearly and expressly. Lord Salmon again stressed this requirement in Pearlberg v. Varty[cdlxix]⁸⁴.”

The provisions of the Migration Act 1963 contain no clear or express exclusion of the rules of natural justice in relation to the power conferred by s. 7, nor can any inference to that effect be extracted from the scheme of the Act.

Under the Constitution there are two further types of proceedings which are, by necessary implication, subject to the principles of natural justice:

(4) Proceedings before courts or other authorities which is determine the existence or extent of a civil right or obligation (s. 37(11) to (13) of the Constitution).

In so far as s. 37(11) provides for proceedings to be heard “fairly”, it must be remembered that natural justice and fairness as notions are frequently equated; in s. 59 of the Constitution it is provided that “the minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly;” the right to be heard is one of the fundamental principles of natural justice.

(5) Proceedings before a person, body or authority who or which required or permitted to do an act in his or its “deliberate judgment” (s. 62 of the Constitution).

The principles of natural justice apply to such proceedings only to a limited extent, viz. “to the extent that the exercise of judgment must not be biased, arbitrary or capricious”.

There can be no doubt that the Committee of Review appointed pursuant to s. 7 (1c) of the Migration Act 1963 is not an independent tribunal established to investigate and determine cases of alleged or suspected misconduct in office under the Leadership Code. There can be no doubt that the Committee of Review is not a village court. Because the Migration Act 1963 does not provide or allow for a decision to be made in the “deliberate judgement” of the Committee of Review, the Committee of Review is not a body or authority of the type referred to in s. 62 of the Constitution. So much for proceedings of the type referred to in numbered pars 1, 2 and 5 above.

I now discuss numbered par. 4 above. Is the Committee of Review an authority which is “determining the existence or extent of a civil right or obligation”? To answer this question one must ascertain the meaning of the words “civil right or obligation”. To ascertain the meaning of those words one needs to go no further than the Court of Appeal decision in Birdi v. Secretary of State for Home Affairs[cdlxx]⁸⁵ in which Lord Denning M.R. said:

“The words ‘civil rights and obligations’ are used (in Article 6 of the European Convention on Human Rights) to denote the rights and obligations given by the civil law of the country. The Article does not extend to administrative procedures, such as licenses given by a licensing authority, nor to the permissions given to aliens to enter a country. Nor does it apply to the leave given or refusal made under the Immigration Act, 1971.”

Applying that principle to the instant case (and remembering that, just as the United Kingdom has adhered to the Convention of which art. 6 is but one part, so have the people of Papua New Guinea incorporated into their Constitution (in s. 37(11) a provision in very similar terms); s. 37(11) does not extend to administrative procedures such as the granting of entry permits to non-nationals or the revocation of such permits under the Migration Act 1963.

It follows that the Committee of Review is not an authority which is “determining the existence or extent of a civil right or obligation”.

It now remains for me to consider numbered par. 3 above. It is clear that the proceedings of the Committee of Review are not judicial proceedings and are administrative. The members of the Committee of Review, like the Minister, are not judges or judicial officers. They are performing an administrative function. They are engaged in administering the control of non-nationals or aliens in this country. Are such proceedings ones to which the principles of natural justice applied, immediately before Independence Day, under the common law and equity in England as adopted as part of the underlying law?

The starting-point for a discussion of this question is once more Birdi v. Secretary of State for Home Affair[cdlxxi]⁸⁶. That decision of the Court of Appeal, one of the highest courts in the judicial hierarchy in England, was handed down on 11th February, 1975, some seven months prior to Independence Day. That authoritative decision, which appears not to have been overruled or disapproved of since (except by Barwick C.J. in a case to which reference will be made later in this judgment), could hardly have been more contemporary at the time the Constitution came into force. It must be assumed that the drafters of the Constitution were aware (at least they are deemed to be aware) of the developments in the common law and equity up to the time of the adoption of the Constitution.

It is to be noted immediately that, in the judgment of the Master of the Rolls in Birdi’s case[cdlxxii]⁸⁷, Lord Denning dealt with the natural justice or fairness argument separately and distinctly from the argument relating to the question of whether action taken with a view to deportation involves “a civil right or obligation”. It is important to note that Birdi’s case was not a case involving the holder of an entry permit who had had his entry permit revoked but was one involving a person who had entered England illegally, was an illegal entrant, and was asserting inter alia a right not only to be permitted to stay in England but also to be accorded natural justice.

Birdi’s case[cdlxxiii]⁸⁸ affirms the principle that an administrative body, such as one charged with the responsibility of deciding which aliens may enter a country and which aliens should leave, may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations; whether the case is a proper one or not all depends on whether the person has some right or interest or legitimate expectation of which it would not be fair to deprive him without hearing what he has to say. That principle had been established in Schmidt v. Secretary of State for Home Affairs[cdlxxiv]⁸⁹ in which Lord Denning M.R. after referring to R. v. Inspector of Leman Street Police Station; Ex parte Venicoff[cdlxxv]⁹⁰ and R. v. Governor of Brixton Prison; Ex parte Soblen [cdlxxvi]⁹¹, and after asserting that the distinction between the exercise of administrative power and the doing of a judicial act was no longer valid, said[cdlxxvii]⁹²:

“The speeches in Ridge v. Baldwin[cdlxxviii]⁹³ show that an administrative body may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations. It all depends on whether he has some right or interest, or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say.”

In Birdi’s case[cdlxxix]⁹⁴ Lord Denning cited with approval R. v. Secretary of State for the Home Department; Ex parte Mughal in which it was stated[cdlxxx]⁹⁵:

“An immigration officer is not a judge or a judicial officer. He has not to obey set rules of procedure. He is an administrative officer. He is engaged in administering the control of immigrants into this country. It is a most responsible and delicate task. He is, of course, bound to act honestly and fairly: but, so long as he does so the courts cannot and should not interfere.”

Geoffrey Lane L.J.[cdlxxxi]⁹⁶ cited with approval another passage from Schmidt’s case[cdlxxxii]⁹⁷ which is most pertinent to the present case. That passage from the judgment of the Master of the Rolls is as follows[cdlxxxiii]⁹⁸:

“He [a foreign alien] has no right to enter this country except by leave: and, if he is given leave to come for a limited period, he has no right to stay for a day longer than the permitted time. If his permit is revoked before the time limit expires, he ought, I think, to be given an opportunity of making representations: for he would have a legitimate expectation of being allowed to stay for the permitted time. Except in such a case, a foreign alien has no right — and, I would add, no legitimate expectation — of being allowed to stay. He can be refused without reasons given and without a hearing. Once his time has expired, he has to go.”

Geoffrey Lane L.J. pointed out that the applicant in that case (Birdi’s case[cdlxxxiv]⁹⁹) was “in no better position than the applicants in Schmidt’s case[cdlxxxv]¹⁰⁰.” With all due respect, I think Lord Denning was of the view that Mr. Birdi was in a stronger position than Mr. Schmidt and his fellow students. What is clear is that the applicants in both cases were seeking an extension of their stay in England. They had not had a permit revoked before its time limit had expired.

On the authority of Birdi’s case[cdlxxxvi]¹⁰¹ Dr. Premdas had the right or interest or legitimate expectation, at the time of the revocation and subsequent review thereof, of being allowed to stay, and he was entitled to make representations, to be given reasons, and to be heard. I regard Dr. Premdas not only as having a sufficient interest to invoke the assistance of the courts but also as entitled in the particular circumstances of his case to the observance of the principles of natural justice. I therefore conclude that the proceedings of the Committee of Review are proceedings to which the principles of natural justice applied, immediately before Independence Day, under the common law and equity in England as adopted as part of the underlying law.

It follows that, as Dr. Premdas did not have what he was entitled to have and as there was non-compliance with the rules of natural justice, in that inter alia he was not heard, the decision of the Committee of Review was invalid. For these reasons Dr. Premdas cannot (and should not) be deported until he has had what the Constitution guarantees to him.

Before leaving this question of natural justice, I should make reference to two recent High Court of Australia cases and a very recent Court of Appeal case in England, all of which were deportation cases and none of which concerned a foreign alien who, having been the holder of an entry permit, had his entry permit revoked before the expiry date. The Australian courts have on occasions differed from the English courts in deciding what the common law is. In so far as there is any difference between the Australian decisions and the English decisions, this Court should prefer the English decisions (see Sch. 2.2(1) of the Constitution).

The first Australian case to which I refer is Salemi v. MacKellar (No. 2)[cdlxxxvii]¹⁰². The court constituted of six justices was equally divided as to whether the Minister was bound to follow any requirements as to natural justice before exercising his power to order the deportation of the plaintiff. Birdi’s case[cdlxxxviii]¹⁰³ does not appear to have been cited to the court let alone considered by the court. Barwick C.J., whose decision on the relevant aspect, with that of Gibbs and Aickin JJ., became the decision of the court pursuant to s. 23(2)(b) of the Judiciary Act 1903 (Aust.), did not construe “legitimate expectation” in the same way as it has been construed in England. I apprehend that the learned Chief Justice of Australia was unaware that Lord Denning’s doctrine of the “legitimate expectation” had been re-affirmed by Lord Denning himself and expressly approved by Geoffrey Lane L.J. in Birdi’s case[cdlxxxix]¹⁰⁴. As an example of “legitimate expectation” their Lordships in that case expressly had in mind the foreign alien (like Dr. Premdas) who “is given leave to come for a limited period”, who “has no right to stay for a day longer than the permitted time”, but who, “if his permit is revoked before the time limit expires”, ought “to be given an opportunity of making representations: for he would have a legitimate expectation of being allowed to stay for the permitted time”; otherwise he has no “right” or “legitimate expectation” of being allowed to stay (see the passage quoted supra from Schmidt’s case[cdxc]¹⁰⁵). Having regard to the fact that the people of Papua New Guinea at Independence expressly chose to adopt the common law and equity in England in preference to the common law and equity in Australia, I feel bound to prefer their Lordships’ interpretation of the words “legitimate expectation”.

Gibbs J., with whom Barwick C.J. was in substantial agreement and with whom Aicken J. fully agreed in relation to the aspect of natural justice, said[cdxci]¹⁰⁶:

“The question whether the principles of natural justice must be applied, and if so what those principles require, depends on the circumstances of each case. In the case of a statutory power, the question will depend on the true construction of the statutory provision in light of the common law principles (cf. Durayappah v. Fernando[cdxcii]¹⁰⁷).

In Durayappah v. Fernando [cdxciii]¹⁰⁸, Lord Upjohn, delivering the reasons of the Privy Council, said that ‘there are three matters which must always be borne in mind when considering whether the principle should be applied or not.’ He went on[cdxciv]¹⁰⁹:

‘These three matters are: first, what is the nature of the property, the office held, status enjoyed or services to be performed by the complainant of injustice. Secondly, in what circumstances or upon what occasions is the person claiming to be entitled to exercise the measure of control entitled to intervene. Thirdly, when a right to intervene is proved, what sanctions in fact is the latter entitled to impose upon the other.’

There may, of course, be other matters that will be relevant in deciding whether the principles apply: for example, the nature of the body on which the power is conferred, the language in which the power is conferred, and the presence in the statute of provisions enabling the exercise of the power to be reviewed.”

Gibbs J. went on to discuss the plaintiff’s position in the light of the matters mentioned by Lord Upjohn and the additional matters mentioned by him. Accepting for present purposes all the matters mentioned by Lord Upjohn and the additional matters mentioned by Gibbs J., it immediately becomes apparent that the present case is to be distinguished from Salemi’s case[cdxcv]¹¹⁰ on its facts. Regarding status (Lord Upjohn’s first consideration) Mr. Salemi, unlike Dr. Premdas, was a person having no title to remain in the country. Regarding the circumstances in which the alien may have his entry permit revoked (Lord Upjohn’s second consideration), the Minister in Salemi’s case[cdxcvi]¹¹¹ had an unconditional right to order the deportation of a prohibited immigrant; in the instant case, the Minister had an unconditional right to revoke an entry permit for less than six months (see s. 7 of the Migration Act 1963), but, in relation to an entry permit for more than six months (as in the case of Dr. Premdas), the Minister had a right to revoke the entry permit conditional upon the non-national’s right to have the revocation reviewed by a Committee of Review. In s. 7(1C), unlike s. 7(1A), the matter is not left entirely to the Minister’s “absolute discretion”. Regarding the sanction (Lord Upjohn’s third consideration) in the case of Mr. Salemi, the power to order deportation, when exercised, had a seriously adverse effect upon him; so in the case of Dr. Premdas the power to revoke his entry permit, if exercised, will have a seriously adverse effect on his life. Stephen J. in this context said[cdxcvii]¹¹²:

“There will be few sanctions more drastic than the deportation of a person originally found suitable for temporary residence in this country ...”

In Dr. Premdas’ case revocation may lead to him being in breach of his contract of employment.

Gibbs J. thought the circumstances as a whole in the case of Mr. Salemi lead to the conclusion[cdxcviii]¹¹³ “that the Minister is not bound to afford a hearing to a prohibited immigrant before ordering his deportation under s. 18.” The circumstances in the instant case lead me to the opposite conclusion. It is true that the very security of the nation may require that the Executive should have the power to decide what aliens shall be permitted to enter and remain in Papua New Guinea and to expel those who have no rights to be in the country. That power undoubtedly exists (and rightly so) in relation to non-nationals who have not yet entered Papua New Guinea, those who have an entry permit for less than six months, and those whose entry permits have expired. But the Parliament has provided a procedure for the review of revocations of entry permits for periods in excess of six months. The scheme of the Act shows that Parliament has drawn a sharp distinction between the deportation of the non-national who is in Papua New Guinea without a valid entry permit, the non-national who is the holder of an entry permit for less than six months and whose entry permit is revoked, and the non-national who is the holder of an entry permit whose entry permit has expired on the one hand and the deportation of the non-national who is the holder of an entry permit for more than six months and whose entry permit has been revoked before the expiry of the permit period on the other hand. The Act gives to the Minister in the case of the former group of non-nationals a power which is on its face unfettered and which stands in contrast to the conditional and controlled powers given by s. 7(1A)(1B) and (1C) in relation to the latter type of non-nationals.

Dr. Premdas’ case is to be distinguished on its facts and in its circumstances from Salemi’s case[cdxcix]¹¹⁴ in which Gibbs J. concluded that the power given by s. 18 of the Migration Act 1958 (Aust.) was not subject to an obligation to observe the principles of natural justice and that it was open to the Minister to issue a deportation order under that section without first giving the person affected an opportunity to be heard. The instant case, it will be remembered, concerns an alien who, having been the holder of an entry permit, had his entry permit revoked before the expiry date.

Although the decision of Stephen, Jacobs and Murphy JJ. by virtue of the operation of s. 23(2)(b) of the Judiciary Act 1903 (Aust.), did not become the decision of the court, what they said about the applicability of the requirements of natural justice is of importance in the instant case, Stephen J. followed and adopted the reasoning of Lord Denning. Stephen J. drew attention to the distinct classifications of foreigners who may ultimately be deported and the differences in their status and his Honour made reference to the “complex pattern” which “may be seen to emerge”.

After considering the English cases up to and including Schmidt’s case[d]¹¹⁵ in 1969 and one Australian case and one New Zealand case, his Honour, in the context of an amnesty, considered the possession by an alien of “a reasonable or legitimate expectation” that he could stay within a country and entitling him “to require, by process of law, that the Minister observe the requirements of natural justice when considering his deportation, the legislation not being in terms inconsistent with the imposition of such a requirement upon the Minister”[di]¹¹⁶. In considering Schmidt’s case[dii]¹¹⁷ Stephen J. emphasised the importance of the distinction between the alien whose entry permit has expired and the alien whose entry permit is revoked before its expiry date. His Honour said[diii]¹¹⁸:

“Reverting to Schmidt’s case[div]¹¹⁹, Lord Denning M.R. describes an administrative body as being bound, in proper cases, to give a person affected by its decision an opportunity of making representations if, although lacking any right or interest, that person yet possesses ‘some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say.’ By way of illustration his Lordship contrasts the case of an alien whose residence permit has expired with that of another whose permit is revoked before its expiry date; the latter possesses a legitimate expectation of being allowed to stay for the full term of the permit, and he alone has, in consequence, a legal right, in accordance with the principles of natural justice ...” (The emphasis is mine.)

Perhaps Stephen J. was prophetic of what has arisen in this case when his Honour said[dv]¹²⁰:

“So far as I am aware there exists no detailed judicial consideration of the basis upon which the possession of a legitimate expectation gives rise to a right to be accorded natural justice. It stems, no doubt, from the same fertile source as has nourished the concept that those who possess rights and interests should not, in the absence of express enactment, be deprived of them by the exercise of an arbitrary discretion and without observance of the rules of natural justice; Byles J. remarked in Cooper v. Wandsworth Board of Works[dvi]¹²¹ that in such a case ‘the justice of the common law will supply the omission of the legislature’. To accord to a well-founded expectation the same protection as the law will in such a case give to some right of property is to reflect what Megarry J. said in John v. Rees[dvii]¹²² when, in dealing with a plaintiff’s loss of honorary office in a branch of a political party, he rejected the notion ‘that the right to natural justice depends upon the right to a few pieces of silver’. When the discretionary grant of a licence, permit or the like carries with it a reasonable expectation of, although no legal right to, renewal or non-revocation, summarily to disappoint that expectation is seen as unfair; hence the requirement that the expectant person should first be heard and this no doubt as much to aid those who exercise discretions in pursuing the goal of a just result as to safeguard the interests of the expectant party. In the Liverpool Corporation case[dviii]¹²³, Roskill L.J. adverted to this aspect when he said, in disposing of a submission that the exercise of a statutory discretion was being fettered, that to require a municipal council to hear representations before making a decision would ‘assist the council to perform rather than inhibit the performance of its statutory duties’.”

Stephen J. then went on to discuss the matters to be borne in mind when considering whether the principle should be applied. Interestingly enough, his Honour did not go as far as Gibbs J. in this context; Stephen J. was content to limit himself to the three matters drawn attention to by their Lordships in Durayappah v. Fernando[dix]¹²⁴.

Jacobs J. also approved of Lord Denning’s doctrine of the “legitimate expectation”, which his Honour said had been “felicitously described”.

Murphy J. in his judgment did not discuss Lord Denning’s doctrine of the “legitimate expectation”, but he held that the Minister in that case was required to exercise his discretion to order deportation in accordance with the principles of natural justice.

Of the three justices of the High Court who considered Lord Denning’s doctrine, a majority (consisting of Stephen and Jacobs JJ.) approved of it.

The second Australian case to which reference needs to be made is R. v. MacKellar; Ex parte Ratu [dx]¹²⁵. In this case the same justices constituted the Bench as sat in Salemi’s case[dxi]¹²⁶ with the exception of Mason J. who joined the other justices constituting the Bench. Their Honours who had sat in the earlier case did not depart from their earlier opinions, but it is significant that Mason J. also approved of the doctrine of the “legitimate expectation”. His Honour said[dxii]¹²⁷:

“No doubt it is right to say that in many circumstances natural justice requires that a person against whom an order is proposed to be made that will deprive him of some right of interest or the legitimate expectation of some benefit is entitled to particulars of the case sought to be made against him.”

However, his Honour went on to state his conclusion that in the circumstances of that case

“... the making of the deportation orders did not deprive the applicants of any right or interest or of the legitimate expectation of a benefit in such circumstances as to impose upon the Minister an obligation to give advance notice of his reasons for making the orders[dxiii]¹²⁸.”

Mason J. pointed to the special position of the alien with a legitimate expectation that he will be allowed to remain. His Honour said[dxiv]¹²⁹:

“The making of a deportation order under s. 18 therefore provides lawful authority for the removal from Australia against his will of a person who has no right to remain here. It is not the case that the order terminates his right to remain; nor can it be said in the ordinary case that it deprives him of a legitimate expectation that he will be allowed to remain here. Deportation, for which the order provides, is then but a consequence of the prohibited immigrant’s failure to depart when he has no right to remain.”

R. v. Secretary of State for Home Affairs; Ex parte Hosenball[dxv]¹³⁰ seems to be the most recent English case of relevance. This was a decision of the Court of Appeal in England constituted on this occasion by Lord Denning M.R., Geoffrey Lane and Cumming-Bruce L.JJ. It is clear that that court was in no doubt that there was some scope for the operation of the principles of natural justice in deportation cases. Otherwise, why would their Lordships have discussed that matter at such length? If it was the law in England in 1977 (and in 1975 as well) that the ordinary rules of natural justice had no application in deportation cases, one would have expected Hosenball’s case[dxvi]¹³¹ to be decided on that basis. Instead, the case turned on the fact that national security was involved, in which event (so the court held) the rules of natural justice were liable to be modified.

My brother Saldanha in his forceful judgment, a copy of which in draft form I have had an opportunity to read, draws attention to the fact that Lord Denning’s doctrine of the “legitimate expectation” is obiter. I would characterize it as a judicial dictum rather than an obiter dictum, because what the Master of the Rolls said was more than a passing remark or a statement by the way or a casual expression of opinion; it was a considered enunciation of his Lordship’s opinion of the law on that point (Richard West and Partners (Inverness) Ltd. v. Dick[dxvii]¹³² per Megarry J.), it was a deliberate expression of opinion given after consideration (Slack v. Leeds Industrial Co-operative Society Ltd.[dxviii]¹³³ per Lord Sterndale, M.R.), and it really formed an integral part of the train of reasoning directed to the real question that was decided (Cornelius v. Phillips[dxix]¹³⁴ per Viscount Haldane).

Whatever may be the correct characterization of the doctrine of “legitimate expectation” in the migration sphere, I find myself unable to believe that, if that doctrine was not part of the law in England in 1975 (when Birdi’s case[dxx]¹³⁵ was decided) or in 1977 (when Hosenball’s case[dxxi]¹³⁶ and when the two High Court of Australia cases, to which reference has been made, were decided) for the reason that it was obiter, that fact would have escaped the notice not only of those members of the Court of Appeal who sat with Lord Denning and Stephen, Mason and Jacobs JJ. of the High Court of Australia but also of Barwick C.J.

I acknowledge the force of the dicta referred to by my brother Saldanha and, in particular, in Attorney-General for the Dominion of Canada v. Cain [dxxii]¹³⁷, Re Marles’ Application [dxxiii]¹³⁸, and R. v. Governor of Brixton Prison; Ex parte Soblen [dxxiv]¹³⁹. They form a strong body of judicial opinion. With respect, they apply (and most aptly too) to the alien who is seeking to enter a country, to the alien whose entry permit has expired, and to the alien who, for reasons of national security or the like, needs to be deported. They do not, in my judgment, apply to the alien who is the holder of a current and unexpired entry permit who has not become a threat either to national security or to the safety of the State. The dicta referred to by Saldanha J. are, in my respectful opinion, no more nor less obiter than the dicta upon which I rely in this judgment. The dicta upon which I rely are directed to the very type of situation that arose in the instant case.

The judicial dicta of Lord Denning M.R. (with whom Stephenson and Geoffrey Lane L.JJ. agreed in Birdi’s case[dxxv]¹⁴⁰ and with whom Cumming-Bruce L.J. also agreed in Hosenball’s case[dxxvi]¹⁴¹), together with the judicial dicta of a majority of the High Court of Australia who have approved Lord Denning’s doctrine of the “legitimate expectation”, amount to an impressive body of authority as to what the common law and equity in 1975 had to say about the application of the principles of natural justice in a situation such as the present. It represents the law in Papua New Guinea which should be applied in this case. I should not refuse to follow it.

I now turn to deal specifically with the questions referred to the Supreme Court.

I would answer this question “No”, and, in doing so, apply Birdi’s case[dxxvii]¹⁴² in which Lord Denning M.R. held that “the words ‘civil rights and obligations’ are used to denote the rights and obligations given by the civil law of the country” and were not affected by administrative procedures such as licences nor by “the permissions given to aliens to enter a country” nor “the leave given or refusal made under the Immigration Act 1971”.

I entirely agree with what my brother Saldanha has said with respect to each of these three questions. I too would answer questions 2, 3 and 4 “No”, and I too would add a qualification to the answer to question 4.

I would answer this question “Yes” for the reasons stated in this judgment. The decision of the Committee of Review upholding the revocation by the Minister of Dr. Premdas’ entry permit should be quashed in the exercise of the powers given under s. 155(4) of the Constitution and an order should be made restraining the Minister from effecting the deportation of Dr. Premdas until further order. If a properly constituted Committee of Review were to review the notice of revocation in accordance with the principles of natural justice and were to uphold the Minister’s decision, then such an injunction could (and should) immediately be lifted.

“Q6. In view of doubt expressed at the National Court hearing of the subject application for injunction are the decisions of the Minister for Foreign Affairs and Trade and of the Committee of Review above referred to within the investigatory powers of the Ombudsman Commission pursuant to s. 219 of the Constitution?”

I would decline to answer this question for the reasons given by the learned Chief Justice.

The Supreme Court is required, under Sch. 2.4 of the Constitution,

“to ensure that, with due regard to the need for consistency, the underlying law develops as a coherent system in a manner that is appropriate to the circumstances of the country from time to time, except insofar as it would not be proper to do so by judicial act”.

In discharge of that duty and being of opinion that this is a proper case to make such a recommendation, I recommend either that s. 7 of the Migration Act 1963 be amended so as to ensure that non-nationals holding entry permits issued for a period of more than six months who have their entry permits revoked by the Minister are accorded the principles of natural justice which, in my judgment, are presently guaranteed by the Constitution and, in particular, to provide that the Committee of Review shall be an independent and impartial tribunal and to provide that the intended deportee shall be given an opportunity to make representation and the right to be heard; or that the Constitution be amended so as to make the right to the principles of natural justice in the Constitution “subject to any restrictions imposed by law on non-citizens” and the Migration Act 1963 be amended so as clearly and expressly to deprive all such non-nationals of the right to be accorded the principles of natural justice (thereby legitimately over-riding part of the common law).

I further recommend that s. 61AA of the Migration Act 1967 be amended so as to make that section subject to the Constitution thereby not excluding the inherent powers of the Supreme Court and the National Court given under s. 155 of the Constitution and the powers given under s. 22 of the Constitution.

ANDREW J: This is a reference to the Supreme Court under s. 18 of the Constitution from a judge of the National Court.

The questions referred raise important matters relating to Constitutional rights and to the interpretation of the Constitution. The division of powers between the Executive and the judiciary are also involved. This is a complex area of the law and the difficulties were predicted by the Final Report of the Constitutional Planning Committee. The report at p. 5/1/18 to 5/1/19 is as follows:

“Enforcement of rights and freedoms

115. We have carefully weighed the arguments for and against the enforcement by the courts of the human rights provisions we have recommended. In part E of chapter 8 ‘The Administration of Justice’ we spell out what we believe are the main arguments for and against the judicial enforcement of constitutional provisions generally. The principal arguments in respect of this issue are similar.

Those who believe judges should not be involved in the enforcement of human rights generally argue firstly, that in deciding cases involving basic human rights the judges will often be concerned with matters which many people would say ought to be decided by members of the National Parliament rather than by a court. For example, the court may have to decide whether it is ‘reasonably justifiable’ for a law to be passed requiring all adult men in certain towns to hold a work permit or be prosecuted for vagrancy. Some people have spoken in the past of the ‘need’ for such a law.

It can be argued, further, that the task of both judges and Government ministers in a new nation such as Papua New Guinea is very difficult even if there are no enforceable human rights and freedoms set out in the Constitution. This is because ministers in such countries have the responsibilities of trying to bring together many different groups of people, some of whom are suspicious of one another, while at the same time trying to bring about rapid economic and social development. Unpopular decisions of courts can place extra strain on both judges and ministers and sometimes lead to serious friction between them. Giving judges the responsibility to decide cases about whether or not basic human rights included in the Constitution have been overridden may put too much strain on the relationship between ministers and judges, and perhaps lead to the judges becoming less independent of the Executive.

On the other hand it can be persuasively argued that if there is no power of enforcement of basic human rights their inclusion in the Constitution is of little value, as the Government and people and organizations who choose to do so, can ignore them. Under the Human Rights Ordinance the Full Court (three Supreme Court judges sitting together) has power to enforce the basic rights and freedoms mentioned earlier, and already that court has made an important decision that a particular right — that of being brought to trial within a reasonable time if one is charged with an offence — had been ignored, and the trial of the person concerned was ordered to take place immediately. The effect of enforceable human rights provisions in a Constitution is not limited to the decisions of courts — such provisions act as a deterrent to governments and parliaments which might otherwise disregard fundamental rights or at least give them insufficient consideration.

Secondly, in a country such as Papua New Guinea, where there are many fairly small groups, it is only by putting these rights and freedoms in the Constitution, and giving the courts power to decide whether or not they have been ignored and power to make orders to enforce them in individual cases, that these small groups can feel secure.

Thirdly, judges and magistrates at times have to make decisions which they know may be unpopular with the Government in any event, but this is part of their role as independent members of the judiciary. Though the Human Rights Ordinance has been in force for only a relatively short period it has not given rise to any suggestion of conflict between the Executive and the judiciary in relation to a decision of a court concerning the Human Rights Ordinance during that time.

116. On balance, we have concluded that the human rights provisions should be enforced by the courts.”

Ralph Rakhinand Premdas (hereinafter called “the applicant”) was a lecturer in politics and Chairman of the Political and Administrative Studies Department at the University of Papua New Guinea. He possessed an entry permit which entitled him to remain in Papua New Guinea during his employment. On 31st May, 1979, the Minister for Foreign Affairs and Trade, exercising the powers vested in him by s. 7 of the Migration Act 1963, revoked such entry permit, the revocation to become effective upon service of the notice of revocation.

Exercising his rights under s. 7 of the Migration Act 1963, the applicant requested that his case be reviewed by a Committee of Review. On 20th June, 1979, the Acting Secretary of the Department of the Prime Minister wrote a letter to the applicant as follows (omitting formal parts):

“I write to advise you that the Committee of Review will meet to consider your application on Tuesday 26th June, 1979 at 10 am at the Conference Room, 9th floor, Marea House, Waigani.

Any written statements from yourself or third persons which you may wish the Committee to consider should be submitted to Mr. Moi Kanat of this Department prior to 4.06 pm on Monday 25th June, as should any request to appear personally before the Committee.

The Committee comprised the Minister for Commerce, the Minister for Decentralisation and the Minister for Health. The applicant attended at the time and place fixed for the meeting of the Review Committee but was not allowed to appear personally before it. On 28th June, 1979, the decision of the Review Committee was communicated to the applicant. He was required to depart from Papua New Guinea on or before 4th July, 1979.

On 3rd July, 1979, the applicant instituted an action in the National Court by way of summons seeking a declaratory order that the principles of natural justice guaranteed in the Constitution had been violated and that the applicant’s rights and freedoms were in need of protection and enforcement and for an order that the applicant not be forcibly removed from Papua New Guinea. On the same day by notice of motion the applicant sought an interlocutory injunction restraining the Minister for Foreign Affairs and Trade effecting the imminent deportation.

From those proceedings the following six questions have been referred:

I set out the relevant sections of the Migration Act 1963:

“S7(1) The Minister may, in his absolute discretion, where an entry permit is issued for a period of six months or less, revoke the entry permit at any time by notice in writing under his hand.

(1A) The Minister may, where an entry permit is issued for a period of more than six months, by notice in writing, served on the holder of the permit personally or by registered post, revoke the entry permit.

(1B) A person on whom a notice under Subsection (1A) has been served may, within seven days after receiving the notice, apply to the Minister in writing to have the notice of revocation reviewed by a Committee of Review.

(1C) As soon as practicable after receiving an application for a review under Subsection (1B) the Chief Minister shall appoint three Ministers to be a Committee of Review and shall submit the application to the Committee for its decision.

(2) At any time while an entry permit is in force or after the expiration or revocation of an entry permit, a further entry permit may, at the request of the holder be granted to the holder and, where such a further entry permit is granted while an entry permit is in force, the further entry permit shall come into force only upon the expiration or revocation of the existing entry permit.

(3) Upon the expiration or revocation of an entry permit, the person who was the holder of the permit becomes a prohibited immigrant unless a further entry permit applicable to him comes into force upon that expiration or revocation.

(4) An authorised officer may require a person who is a prohibited immigrant by virtue of the last preceding subsection to leave the Territory within a time specified by the authorised officer, and that person shall comply with the requirement.

Penalty for a contravention of this subsection: Four hundred dollars or imprisonment for three months.”

Section 61AA of the Migration Act 1963 is as follows:

“61AA. No Appeal Against Decision of Minister, Etc

(2) Without limiting the generality of subsection (1), the expression ‘review or challenge’ in that subsection includes:

(a) a writ of certiorari, prohibition or mandamus or other form of prerogative writ, or other writ, order or process in the nature of such a writ; or

(b) proceedings by way of appeal or for a writ, order or process referred to in paragraph (a) (including proceedings for an order Nisi or to show cause why relief should not be granted).”

Before dealing with each question it is, in my view, necessary to examine the report of the Constitutional Planning Committee (hereinafter referred to as the C.P.C. report) as an aid to interpretation and to understand the intention of the framers of the Constitution in relation to restrictions on the entry of foreign citizens and upon the period during which they may remain. In my opinion those intentions are clearly expressed and must be considered when answering each question.

Thus the C.P.C. report at p. 5/1/12 to 5/1/13 is as follows:

“70. All countries, in the interests of their own citizens place restrictions on the entry of foreign citizens to their territory, and upon the period during which they may remain in the country, though of course some states are much more strict in this regard than are others. All countries also have legislation which provides for the deportation of foreign citizens in a range of circumstances which usually includes a number of situations besides that in which a foreign citizen is found guilty of a criminal offence. For example, under United Kingdom legislation a foreign citizen may be deported whenever the Home Secretary ‘deems it conducive to the public good’.

71. We believe the right to limit the movement of foreign citizens is part of a country’s sovereign rights, and should be retained as such. This is not to say that we consider that foreign citizens should be unreasonably restricted in regard to the parts of the country to which they may travel. We simply believe that the full power of parliament to make appropriate laws to limit the movement of non-citizens in the interests of all Papua New Guinean citizens must be retained.”

The “full power of Parliament” to make such a law is reflected in s. 7 and s. 61AA of the Migration Act 1963. That later section is in strong terms and was introduced in 1975, the year of Independence.

In the Constitution, the national goals and directive principles are contained in the preamble. That division of the Constitution contains the basic rights. They are set out as follows:

“Basic Rights.

WE HEREBY ACKNOWLEDGE that, subject to any restrictions imposed by law on non-citizens, all persons in our country are entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever their race, tribe, places of origin, political opinion, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the legitimate public interest, to each of the following:

(a) life, liberty, security of the person and the protection of the law; and

(b) the right to take part in political activities; and

(d) freedom of conscience, of expression, of information and of assembly and association; and

(e) freedom of employment and freedom of movement; and

(f) protection for the privacy of their homes and other property and from unjust deprivation of property,

and have accordingly included in this Constitution provisions designed to afford protection to those rights and freedoms, subject to such limitations on that protection as are contained in those provisions, being limitations primarily designed to ensure that the enjoyment of the acknowledged rights and freedoms by an individual does not prejudice the rights and freedoms of others or the legitimate public interest.” (The emphasis is mine.)

The use which can be made of the preamble of the Constitution might be thought to be restricted by Schedule 1.3 of the Constitution which provides:

“Sch. 1.3. Form of the Constitutional Laws

(1) The Preamble to this Constitution (being the provisions that end immediately before the heading to Part 1) forms part of this Constitution, but expresses general principles and therefore must be read subject to any other provision of this Constitution, though it may be used as an aid to interpretation in case of doubt.”

I should indicate at this point that it is clear that the Minister and the Committee of Review when exercising their powers under s. 7 of the Migration Act 1963 are exercising administrative functions and not judicial or quasi-judicial ones. This function is also described as “executive” or ministerial”. I shall return to this point later in this judgment.

It is also clear, to my mind, that the rights which the applicant complains have been violated, must be considered in the light of the stricture in the Constitution that the basic rights are subject to restrictions imposed by law on non-citizens. In this case the restrictions imposed by the Migration Act 1963 and they must be considered together with the recommendation of the C.P.C. report that the right to limit the movement of foreign citizens is part of the country’s sovereign rights.

Furthermore, as an aid to interpretation I turn again to the C.P.C. report at p. 2/25:

“The goals and principles as a guide in judicial interpretation

(1) All courts and other adjudicatory tribunals shall be guided in the exercise of their functions by the National Goals and Directive Principles.

(2) ...

(3) ...

Note: (i) To exemplify the manner in which clause (1) of this recommendation is intended to be applied as an aid to interpretation, we envisage that where the meaning of a constitutional provision is in question, or there is doubt as to the constitutional validity of any law or administrative action, or there is ambiguity in any law, or no particular law or principle of law appears to apply to the circumstances involved in any matter before a court, the court will give an interpretation which is consistent with the National Goals and Directive Principles rather than an alternative interpretation.” (The emphasis is mine.)

The national goals and directive principles of the Constitution, as I have indicated, are contained in the preamble which provides that the constitutional basic rights are subject to any restrictions imposed by law on non-citizens. This is again a relevant consideration in relation to each question which has been found. This recommendation is enshrined in s. 25 of the Constitution.

With those aims and intentions in mind I now turn to those questions.

QUESTION 1

Under this question there are two distinct bodies to be considered, namely the Minister and the Committee of Review. The applicant relies on s. 37(11) of the Constitution and says that in revoking the entry permit and in making a deportation order, those bodies were dealing with a civil right. That “civil right”, it was said, must be determined in accordance with s. 37(11) and s. 37(12) of the Constitution. They are as follows:

The term “civil right” is not defined. The provision of s. 37(11) seems to derive from the European Convention on Human Rights. See Jacobs, The European Convention on Human Rights, (1975), p. 77; art. 6(1) of that convention is in similar terms to s. 37(11) of the Constitution. The learned author concludes that there must be some pre-existing relationship under civil law and that many kinds of administrative proceedings are not covered by art. 6(1).

In Birdi v. Secretary of State for Home Affairs[dxxviii]¹⁴³ Lord Denning said:

“We were also referred to Article 6. It says that:

There is no infringement of that Article here. The words ‘civil rights and obligations’ are used to denote the rights and obligations given by the civil law of the country. The article does not extend to administrative procedures, such as licences given by a licensing authority, nor to the permission given to aliens to enter a country. Nor does it apply to the leave given or refusal made under the Immigration Act 1971.” (The emphasis is mine.)

In my view a person granted an entry permit to Papua New Guinea has a licence to enter and remain in Papua New Guinea. It does not amount to a “civil right” not to have that permit revoked. The licence can be revoked at any time by Executive act. See Attorney-General for the Dominion of Canada v. Cain[dxxix]¹⁴⁴.

I said earlier that both the Minister and the Committee of Review were exercising administrative functions (or “ministerial or Executive ones). That this is so is clear from numerous decisions. In R. v. Inspector of Leman Street Police Station; Ex parte Venicoff [dxxx]¹⁴⁵, where it was held that in exercising a power of deportation the Secretary of State was acting in an executive and not in a judicial capacity. He is not bound to hold an inquiry or give the person proposed to be deported the opportunity of being heard. This has been followed in Schmidt v. Secretary of State for Home Affairs [dxxxi]¹⁴⁶, and R. v. Governor of Brixton Prison; Ex parte Soblen [dxxxii]¹⁴⁷. It has been applied in the Commonwealth in Kenya in Re Marles’ Application [dxxxiii]¹⁴⁸. The position is the same in Australia. In R. v. MacKellar; Ex parte Gaunt [dxxxiv]¹⁴⁹, it was held that the principles of natural justice do not apply to the making of deportation orders. See also Salemi v. MacKellar (No. 2)[dxxxv]¹⁵⁰.

In my view, under the terms of the Migration Act 1963, there is no civil right in issue within the meaning of s. 37(11) of the Constitution.

In accordance with what I have said earlier, the provisions of the Constitution as to basic rights in the case of non-citizens have to be interpreted in the light of “any restrictions imposed by law”. Those restrictions are contained in the Migration Act 1963. Giving due weight to this and to the fact that it is part of the country’s sovereign rights to limit the movement of foreign citizens, I conclude that under s. 7 of the Migration Act 1963, neither the Minister for Foreign Affairs and Trade nor the Committee of Review is determining the existence or extent of a civil right within the meaning of s. 37(11) of the Constitution.

I would answer question 1 as “No”.

QUESTION 2

Under this question the applicant submits that his rights under s. 42 and s. 48 of the Constitution have been violated. In other words, that he has been deprived of his personal liberty and of his right to freedom of choice of employment. I am unable to see any merit in these submissions.

As I understand the first submission, it was that the applicant’s character had been brought into question. But s. 42 of the Constitution is dealing only with the liberty of the subject and almost exclusively in relation to persons charged, convicted and sentenced for offences under the criminal law.

The section is not dealing with questions of threats to one’s character.

Neither the Minister nor the Committee were determining any right to freedom of choice of employment. They were only determining the revocation and review of the revocation of the entry permit. That, as I have said, was an executive act. I agree with the submission of counsel for the State that what the applicant is saying here is that there are other indirect consequences which flow from the decision to revoke the entry permit. I cannot see how they are relevant. Again, all of these qualified rights must be interpreted, subject, in the case of non-citizens, to any restrictions imposed by law.

In my opinion, there have been no actual or immanent infringements of the qualified rights of the Constitution.

I would answer this question as “No”.

QUESTION 3

Section 41 of the Constitution is as follows:

“41. Proscribed acts

(1) Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case:

(a) is harsh or oppressive; or

(b) is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or

(c) is otherwise not, in the particular circumstances, reasonably jusifiable in a democratic society having a proper regard for the rights and dignity of mankind,

is an unlawful act.

(2) The burden of showing that Subsection (1)(a), (b) or (c) applies in respect of an act is on the party alleging it, and may be discharged on the balance of probabilities.

(3) Nothing in this section affects the operation of any other law under which an act may be held to be unlawful or invalid.”

This section of the Constitution is perhaps unique in that there appears to be no parallel in any other Constitution of any of the countries of the world. It appears in the introductory part to the qualified rights section. However, the section is in wide terms and does not restrict itself to qualified rights. It may be that it applies also to fundamental rights but I find it is not necessary to decide that question here.

I turn to the facts in this case. Affidavit evidence has been placed before this Court. I do not set out their contents but in my view there is shown, on the balance of probabilities, that:

(a) a serious staff and morale situation had arisen at the Department of Primary Industry, because of Dr. Premdas’ interference in the affairs of that Department, and

(b) a serious situation had developed as a result of his access to confidential documents whilst not employed under the Ministerial Personal Staff Act 1972 and still employed at the University of Papua New Guinea.

The applicant would have to show that the Minister’s decision was one which no reasonable body could have come to and that the Minister’s discretion was not exercised in accordance with the policy and objects of the Migration Act 1963.

The amendment to the Migration Act in 1975 stated in its title:

“An Act to amend the Migration Act 1963 as amended to date, to give the Government greater control over the entry into and stay in Papua New Guinea of non-nationals ...” (The emphasis is mine.)

In my view there is nothing to show that the Minister or Committee acted in any way contrary to the policy and objects of the Migration Act 1963. The applicant was advised of the nature and reasons for the proceedings. He was allowed to make written representations. I have held that the rules of natural justice do not apply and I have already indicated the undoubted intention of the Constitution to give the Sovereign State control over non-nationals within the country.

I do not find the actions of the Minister or of the Committee to be harsh or oppressive nor do I think it was not warranted by, or disproportionate to, the requirements of the particular circumstances of the case. In my opinion the applicant was given greater consideration than would be granted in most other countries of the world.

I would answer question 3 as “No”.

QUESTION 4

Counsel for the State concedes that it is not possible to exclude the National Court’s jurisdiction under s. 155(5) of the Constitution or the jurisdiction of the Supreme and National Courts in relation to the enforcement or interpretation of the Constitution and I find that this is so.

The jurisdiction of the National Court derives from s. 166 of the Constitution which is as follows:

“166. Jurisdiction of the National Court

(1) Subject to this Constitution, the National Court is a court of unlimited jurisdiction.

(2) In particular, the National Court has the jurisdiction set out in:

(a) Section 22 (enforcement of the Constitution); and

(b) Subdivision III.3.D (enforcement); and

(3) ...

(4) ...

(5) ...”

The enforcement of the Constitution is vested in the National Court by ss. 22, 57 and 58. These powers are unlimited. Section 61AA of the Migration Act 1963 excludes the court’s jurisdiction in relation to appeals (which are statutory matters) and prerogative writ proceedings (which are review proceedings). This section however cannot limit the National Court’s power to enforce any right guaranteed by the Constitution.

The jurisdiction of the National Court is also as set out in s. 155 of the Constitution. Section 155(3) gives the National Court an inherent power to review any exercise of judicial authority. In my view it is not given inherent power to review “administrative”, “executive” or “ministerial” bodies, that is non-judicial bodies. To this extent s. 61AA of the Migration Act 1963 does not conflict with the National Court’s powers of review.

The Supreme Court’s jurisdiction is given by s. 155 and s. 162 of the Constitution. There is nothing in the Constitution which would allow the Supreme Court’s powers to be limited or ousted by an ordinary Act. Section 155(4) of the Constitution is as follows:

In my view this section is a grant of power to both the National and Supreme Courts. However, I cannot see that it is necessarily a grant of power to review by prerogative writ matters other than judicial ones. I go back to the beginning of this judgment and take into account, once again, the intention of the framers of the Constitution in relation to the question of the movement of non-citizens. I am bound to give an interpretation in accordance with s. 25 of the Constitution. In doing so I find that s. 155(4) of the Constitution was not intended to give a right of review into an administrative decision to deport a non-national.

I find that s. 61AA of the Migration Act 1963 cannot exclude the jurisdiction of the Supreme and National Courts in relation to the enforcement or interpretation of the Constitution. But that does not mean it is unconstitutional. By virtue of s. 10 of the Constitution, if it does exceed its authority, it shall nevertheless be a valid law to the extent to which it is not in excess of that authority.

In practical terms it is difficult to see how a non-national could successfully challenge a revocation of an entry permit or a deportation order once that decision had been made by the Minister and confirmed by the Committee of Review. In my view there would have to be shown some gross breach of the Constitution. This becomes more difficult in view of the restrictions by the Constitution of the basic rights by any law on non-citizens and the clear intention of Parliament in the Migration Act 1963.

I would answer question 4 as follows: “No”. Section 61AA of the Migration Act 1963 is not unconstitutional but it cannot exclude the jurisdiction of the Supreme Court and National Court in relation to the enforcement or interpretation of the Constitution.

QUESTION 5

As the four previous questions have been answered in the negative, it is unnecessary to answer this question.

QUESTION 6

Both counsel agreed that this question should be answered “Yes”. In my view it is not particularly relevant to the circumstances of this case and as it has not been argued I would decline to answer it.

Court answers Qs. 1, 2, 3 and 5 “No”. Q. 4 is answered “No” — s. 61AA Migration Act is not unconstitutional; but it cannot prevent the jurisdiction of the National and Supreme Courts being involved in support of alleged Constitutional rights and against alleged breaches of the Constitution.

(Wilson J. considers Q. 5 should be answered “Yes” — the remaining members of the court consider it should be answered “No” and it is so answered.) Q. 6 is NOT answered.

The injunction is dissolved. Costs are to be costs in the suit. The matter is remitted for further proceedings.

Solicitor for the applicant: J. K. Gawi.

Solicitor for the Independent State of Papua New Guinea: C. Maino-Aoae, State Solicitor.

[ccclxxxvi]Infra. p. 338

[ccclxxxvii]Infra. p. 338

[ccclxxxviii]Infra. p. 338

[ccclxxxix]Judgment of C.A., 11th Feb., 1975, reported in part in (1976) 92 L.Q.R. 34; (1975) 119 S.J. 322; The Times, 12th Feb., 1975.

[cccxc]Judgment of C.A., 11th Feb., 1975, reported in part in (1976) 92 L.Q.R. 34; (1975) 119 S.J. 322; The Times, 12th Feb., 1975.

[cccxci][1906] A.C. 542.

[cccxcii] [1906] A.C. 532, at p. 546.

[cccxciii][1920] 3 K.B. 72.

[cccxciv][1963] 2 Q.B. 243.

[cccxcv][1958] E.A. 153.

[cccxcvi] [1953] E.A. 153, at p. 161.

[cccxcvii][1920] 3 K.B. 72.

[cccxcviii][1963] 2 Q.B. 243.

[cccxcix][1958] E.A. 153.

[cd] [1969] 2 Ch. 149, at p. 170.

[cdi][1914] ArgusLawRp 13; (1978) 20 A.L.R. 119.

[cdii](1977) 137 C.L.R. 396; 14 A.L.R. 1.

[cdiii](1977) 137 C.L.R. 461; 14 A.L.R. 317.

[1948] 1 K.B. 223.

[cdv][1968] A.C. 997.

[cdvi][1947] EWCA Civ 1; [1948] 1 K.B. 223, at p. 228.

[cdvii][1947] EWCA Civ 1; [1948] 1 K.B. 223, at p. 230.

[cdviii][1968] UKHL 1; [1968] A.C. 997, at p. 1030.

[cdix][1979] 3 W.L.R. 359; [1979] 2 All E.R. 267.

[cdx] [1979] 2 All E.R. 267, at p. 267.

[cdxi] [1979] 2 All E.R. 267, at p. 267, note a.

[cdxii] [1979] 3 W.L.R. 359, at p. 372; [1979] 2 All E.R. 267, at p. 277.

[cdxiii][1979] 3 W.L.R. 359; [1979] 2 All E.R. 267.

[cdxiv]Judgment of C.A., 11th Feb., 1975, reported in part in (1976) 92 L.Q.R. 34; (1975) 119 S.J. 322; The Times, 12th Feb., 1975.

[cdxv]Judgment of C.A., 11th Feb., 1975, reported in part in (1976) 92 L.Q.R. 34; (1975) 119 S.J. 322; The Times, 12th Feb., 1975.

[cdxvi][1948] 1 K.B. 223.

[cdxvii][1968] A.C. 997.

[cdxviii] [1920] 3 K.B. 72, at p. 80.

[cdxix][1920] 3 K.B. 72.

[cdxx][1963] 2 Q.B. 243.

[cdxxi] [1963] 2 Q.B. 243, at p. 298.

[cdxxii][1920] 3 K.B. 72.

[cdxxiii] [1958] E.A. 153, at p. 164.

[cdxxiv] [1972] 1 W.L.R. 534, at p. 547; [1972] 2 All E.R. 6, at p. 17.

[cdxxv] [1969] 2 Ch. 149, at p. 159.

[cdxxvi] [1963] 2 Q.B. 243, at pp. 243, 298-302.

[cdxxvii][1967] 2 Q.B. 617.

[cdxxviii] [1969] 2 Ch. 149, at p. 170.

[cdxxix][1920] 3 K.B. 72.

[cdxxx][1963] 2 Q.B. 243.

[cdxxxi] [1969] 2 Ch. 149, at p. 170.

[cdxxxii][1964] A.C. 40.

[cdxxxiii][1967] 2 Q.B. 617.

[cdxxxiv] [1967] 2 Q.B. 617, at p. 630.

[cdxxxv][1964] A.C. 40.

[cdxxxvi] [1969] 2 Ch. 149, at p. 171.

[cdxxxvii][1969] 2 Ch. 149.

[cdxxxviii][1969] 2 Ch. 149.

[cdxxxix][1969] 2 Ch. 149.

[cdxl]Judgment of C.A., 11th Feb., 1975, reported in part in (1976) 92 L.Q.R. 34; (1975) 119 S.J. 322; The Times, 12th Feb., 1975.

[cdxli][1969] 2 Ch. 149.

[cdxlii]Judgment of C.A., 11th Feb. 1975, reported in part in (1976) 92 L.Q.R. 34; (1975) 119 S.J. 322; The Times, 12th Feb., 1975.

[cdxliii][1969] 2 Ch. 149.

[cdxliv]Judgment of C.A., 11th Feb., 1975, reported in part in (1976) 92 L.Q.R. 34; (1975) 119 S.J. 322; The Times, 12th Feb., 1975.

[cdxlv][1969] 2 Ch. 149.

[cdxlvi]Judgment of C.A., 11th Feb., 1975, reported in part in (1976) L.Q.R. 34; (1975) 119 S.J. 322; The Times, 12th Feb., 1975.

[cdxlvii][1969] 2 Ch. 149.

[cdxlviii]Judgment of C.A., 11th Feb., 1975, reported in part in (1976) 92 L.Q.R. 34; (1975) 119 S.J. 322; The Times, 12th Feb., 1975.

[cdxlix][1918] A.C. 199.

[cdl] [1918] A.C. 199, at p. 211.

[cdli][1934] 2 K.B. 132

[cdlii] [1934] 2 K.B. 132, at p. 154.

[cdliii][1906] A.C. 542.

[cdliv][1906] UKLawRpAC 37; [1906] A.C. 542, at p. 546.

[cdlv][1958] E.A. 153.

[cdlvi] [1958] E.A. 153, at p. 161.

[cdlvii][1963] Q.B. 243.

[cdlviii] [1963] Q.B. 243, at pp. 300-301.

[cdlix][1917] 1 K.B. 922.

[cdlx][1918] 1 K.B. 578.

[cdlxi]Unreported. (Recorded in Lord McNair’s International Law Opinions, 1956, vol. 2, p. 111.)

[cdlxii][1969] 2 Ch. 149.

[cdlxiii] [1969] 2 Ch. 149, at p. 168.

[cdlxiv][1976] HCA 39; (1976) 136 C.L.R. 248, at p. 264; 9 A.L.R. 551.

[cdlxv][1958] HCA 6; (1958) 98 C.L.R. 383, at p. 397.

[cdlxvi][1977] HCA 26; (1977) 137 C.L.R. 396, at p. 440; [1977] HCA 26; 14 A.L.R. 1, at p. 35.

[cdlxvii][1958] HCA 6; (1958) 98 C.L.R. 383, at p. 397.

[cdlxviii] [1971] A.C. 297, at p. 318.

[cdlxix] [1972] 1 W.L.R. 534, at p. 551; [1972] 2 All E.R. 6, at p. 21.

[cdlxx]Judgment of C.A., 11th Feb., 1975, reported in part in (1976) 92 L.Q.R. 34; (1975) 119 S.J. 322; The Times, 12th Feb., 1975.

[cdlxxi]Judgment of C.A., 11th Feb., 1975, reported in part in (1976) 92 L.Q.R. 34; (1975) 119 S.J. 322; The Times, 12th Feb., 1975.

[cdlxxii]Judgment of C.A., 11th Feb., 1975, reported in part in (1976) 92 L.Q.R. 34; (1975) 119 S.J. 322; The Times, 12th Feb., 1975.

[cdlxxiii]Judgment of C.A., 11th Feb., 1975, reported in part in (1976) 92 L.Q.R. 34; (1975) 119 S.J. 322; The Times, 12th Feb., 1975.

[cdlxxiv][1969] 2 Ch. 149.

[cdlxxv] [1920] 3 K.B. 72.

[cdlxxvi][1963] 2 Q.B. 243.

[cdlxxvii] [1969] 2 Ch. 149, at p. 170.

[cdlxxviii][1964] A.C. 40.

[cdlxxix]Judgment of C.A., 11th Feb., 1975, reported in part in (1976) 92 L.Q.R. 34; (1975) 119 S.J. 322; The Times, 12th Feb., 1975.

[cdlxxx] [1974] 1 Q.B. 313, at p. 325.

[cdlxxxi]Judgment of C.A., 11th Feb., 1975, reported in part in (1976) 92 L.Q.R. 34; (1975) 119 S.J. 322; The Times, 12th Feb., 1975.

[cdlxxxii][1969] 2 Ch. 149.

[cdlxxxiii] [1969] 2 Ch. 149, at p. 171.

[cdlxxxiv]Judgment of C.A., 11th Feb., 1975, reported in part in (1976) 92 L.Q.R. 34; (1975) 119 S.J. 322; The Times, 12th Feb., 1975.

[cdlxxxv][1969] 2 Ch. 149.

[cdlxxxvi]Judgment of C.A., 11th Feb., 1975, reported in part in (1976) 92 L.Q.R. 34; (1975) 119 S.J. 322; The Times, 12th Feb., 1975.

[cdlxxxvii](1977) 137 C.L.R. 396; 14 A.L.R. 1.

[cdlxxxviii]Judgment of C.A., 11th Feb., 1975, reported in part in (1976) 92 L.Q.R. 34; (1975) 119 S.J. 322; The Times, 12th Feb., 1975.

[cdlxxxix]Judgment of C.A., 11th Feb., 1975, reported in part in (1976) 92 L.Q.R. 34; (1975) 119 S.J. 322; The Times, 12th Feb., 1975.

[cdxc] [1969] 2 Ch. 149, at p. 171.

[cdxci][1977] HCA 26; (1977) 137 C.L.R. 396, at pp. 413-414; [1977] HCA 26; 14 A.L.R. 1, at p. 19.

[cdxcii] [1967] 2 A.C. 337, at p. 350.

[cdxciii] [1967] 2 A.C. 337, at p. 349.

[cdxciv] [1967] 2 A.C. 337, at p. 349.

[cdxcv](1977) 137 C.L.R. 396; 14 A.L.R. 1.

[cdxcvi](1977) 137 C.L.R. 396; 14 A.L.R. 1.

[cdxcvii][1977] HCA 26; (1977) 137 C.L.R. 396, at p. 442; [1977] HCA 26; 14 A.L.R. 1, at p. 36.

[cdxcviii][1977] HCA 26; (1977) 137 C.L.R. 396, at p. 421; [1977] HCA 26; 14 A.L.R. 1, at p. 20.

[cdxcix](1977) 137 C.L.R. 396; 14 A.L.R. 1.

[d][1969] 2 Ch. 149.

[di][1977] HCA 26; (1977) 137 C.L.R. 396, at pp. 436-437; [1977] HCA 26; 14 A.L.R. 1, at p. 32.

[dii][1969] 2 Ch. 149.

[diii][1977] HCA 26; (1977) 137 C.L.R. 396, at pp. 437-438; [1977] HCA 26; 14 A.L.R. 1, at p. 33.

[1969] 2 Ch. 149, at p. 170.

[dv][1977] HCA 26; (1977) 137 C.L.R. 396, at pp. 438-439; [1977] HCA 26; 14 A.L.R. 1, at p. 34.

[dvi][1863] EngR 424; (1863) 14 C.B. (N.S.) 180, at p. 194; [1863] EngR 424; 143 E.R. 414, at p. 420.

[dvii] [1970] 1 Ch. 345, at p. 398; [1969] 2 All E.R. 274, at p. 306.

[dviii] [1972] 2 Q.B. 299, at p. 310.

[dix] [1967] 2 A.C. 337, at p. 349.

[dx](1977) 137 C.L.R. 461; 14 A.L.R. 317.

[dxi](1977) 137 C.L.R. 396; 14 A.L.R. 1.

[dxii][1977] HCA 35; (1977) 137 C.L.R. 461, at p. 476; [1977] HCA 35; 14 A.L.R. 317, at pp. 329-330.

[dxiii][1977] HCA 35; (1977) 137 C.L.R. 461, at pp. 476-477; [1977] HCA 35; 14 A.L.R. 317, at p. 330.

[dxiv][1977] HCA 35; (1977) 137 C.L.R. 461, at pp. 478-479; [1977] HCA 35; 14 A.L.R. 317, at p. 331.

[dxv][1977] 1 W.L.R. 766; [1977] 3 All E.R. 452.

[dxvi][1977] 1 W.L.R. 766; [1977] 3 All E.R. 452.

[dxvii] [1969] 2 Ch. 424, at p. 431; [1969] 1 All E.R. 289, at p. 292.

[dxviii] [1923] 1 Ch. 431, at p. 451.

[dxix] [1918] A.C. 199, at p. 211.

[dxx]Judgment of C.A., 11th Feb., 1975, reported in part in (1976) 92 L.Q.R. 34; (1975) 119 S.J. 322; The Times, 12th Feb., 1975.

[dxxi] [1977] 1 W.L.R. 766; [1977] 3 All ER. 452.

[dxxii][1906] A.C. 542.

[dxxiii][1958] E.A. 153.

[dxxiv][1963] 2 Q.B. 243.

[dxxv]Judgment of C.A., 11th Feb., 1975, reported in part in (1976) 92 L.Q.R. 34; (1975) 119 S.J. 322; The Times, 12th Feb., 1975.

[dxxvi][1977] 1 W.L.R. 766; [1977] 3 All E.R. 452.

[dxxvii]Judgment of C.A., 11th Feb., 1975, reported in part in (1976) 92 L.Q.R. 34; (1975) 119 S.J. 322; The Times, 12th Feb., 1975.

[dxxviii]Judgment of C.A., 11th Feb., 1975, reported in part in (1976) 92 L.Q.R. 34; (1975) 119 S.J. 322; The Times, 12th Feb., 1975.

[dxxix][1906] A.C. 542.

[dxxx][1920] K.B. 72.

[dxxxi][1969] 2 Ch. 149.

[dxxxii][1963] 2 Q.B. 243.

[dxxxiii][1958] E.A. 153.

[dxxxiv](1978) 20 A.L.R. 119.

[dxxxv][1977] HCA 26; (1977) 137 C.L.R. 396; 14 A.L.R. 1.

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