Public Employees Association of PNG v Public Services Commission [1983] PNGLR 206 (28 June 1983)

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[1983] PNGLR 206 - Public Employees Association of PNG v Public Services Commission

STATE SERVICES - Public servants - Strike action - Breach of Public Service Act - Nature of breach - Disciplinary offence only - Not criminal offence - Public Service Act, (Ch. No. 67), s. 85 - Constitution s. 37(3).[xxviii]¹

CRIMINAL LAW - “Criminal offence” - Distinguished from disciplinary offences - Applicability of Constitution s. 37(3).[xxix]²

Section 85(1) and (2) of the Public Service Act (Ch. No. 67), provide that an officer who takes part in specified strike action is deemed to have committed “an illegal action against the peace and good order of the country” and may if adjudged guilty thereof after investigation and hearing by the Commission be summarily dismissed.

(1) The “offence” created by s. 85(1) of the Public Service Act is a disciplinary offence and not a criminal offence.

(2) For an “offence” to be treated as a criminal offence there must exist (a) an act against the state or society which (b) semble, leads to criminal proceedings, and (c) which is subject to a penalty by way of fine or imprisonment.

(3) Section 37(3) of the Constitution affords protection to criminal offences only and does not extend to the procedure and punishment for disciplinary offences.

(4) (Per Bredmeyer J) Section 85 of the Public Service Act is constitutionally valid.

This was an appeal from a decision of Kapi DCJ refusing to grant interim injunctions to restrain the Public Service Commission from dismissing or otherwise dealing with certain public servants who had allegedly engaged in strike action contrary to the provisions of the Public Service Act, (Ch. No. 67).

KIDU CJ PRATT J: This appeal arises from a dispute which led the appellant Association to issue a writ against the Commission to restrain it from dismissing or otherwise penalizing certain public servants who had allegedly engaged in strike action. Following service of the writ, the Association unsuccessfully applied to the Deputy Chief Justice for an interim injunction to restrain the Commission from carrying out the dismissals pending final resolution of the matter. In the view of the learned Deputy, the applicants failed “to show that a serious question has been raised for decision”. From that decision the Association appealed to this Court on two grounds:

“(1) That the National Court erred in that it went beyond deciding whether there was a serious question for decision and instead expressed an opinion on the merits and purported to decide the issue.”

We say at the outset we do not consider this ground was or could have been strongly pursued by the appellant and we frankly see no merit in it. His Honour was very clearly aware of the guiding principles which governed his reasoning process on the granting or refusal to grant an interim injunction. Indeed he referred to an earlier judgment of his own, Employers Federation of Papua New Guinea v Papua New Guinea Waterside Workers and Seaman’s Union and Lawrence Titimur, Tony Hartwell and Didulosi Boshen (unreported judgment No. N393 of 11 October 1982 Kapi DCJ), where he had carefully collated the overseas and local authorities expounding the principles to be observed in granting or refusing such an application. It is not necessary for the purpose of this case to traverse the same ground. It is true that his Honour went into some detail concerning the merits of the matter, but no more in our view than was necessary to show first, what the issues were, and second, that he appreciated those issues and came to certain conclusions in the light of established principle. We do not think that any decision was made “on the merits”.

It seems to us that a much more concerted attack was mounted against his Honour’s decision under the second ground of appeal. The appellant claims that an error was made in deciding there was “no serious question raised” for three separate but inter-related reasons:

“(a) in holding that the ‘illegal action against the peace and good order of the country’ created by s. 85 of the Public Service Act was a disciplinary offence;

(b) in holding that the said illegal action being a disciplinary offence could not also be an offence within the meaning of s. 37(3) of the Constitution;

Section 85(1) and (2) of the Public Service Act, (Ch. No. 67), has appeared in several previous Public Service Acts and reads as follows:

“(1) An officer who aids, abets, foments or takes part in a strike action that:

(b) is intended or calculated to interfere with or prevent, the carrying on of any part of the public services or utilities of the country, or who attempts to do so, shall be deemed to have committed an illegal action against the peace and good order of the country.

(2) Any officer adjudged by the Commission, after investigation and hearing, to be guilty of any action referred to in Subsection (1) may be summarily dismissed by the Commission from the Public Service, without regard to the procedure prescribed in this Act for dealing with disciplinary offences.”

When the submission is reduced to its basics, it really amounts to this: because the section is expressed to deal with “an illegal action against the peace and good order of the country”, it therefore amounts to an offence against the State or a crime. This being so, the argument concludes, such strike action was either a criminal offence in toto or alternatively in addition to being some sort of disciplinary offence under the Public Service Act, was also a criminal offence, and therefore was covered by s. 37(3) of the Constitution. This section reads:

“A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court.”

The same argument of course had been placed before the learned trial judge and at the outset, his Honour took the view that s. 37(3) of the Constitution did not apply to disciplinary offences. As support for such approach his Honour referred to S.C.R. No. 1 of 1981; Re Inter-Group Fighting Act, 1977 [1981] P.N.G.L.R. 151 and S.C.R. No. 1A of 1981; Re Motor Traffic Act [1982] P.N.G.L.R. 122. With respect, his Honour also correctly extrapolated from the authority of Sudi Yaku v Commissioner of Police, Ex parte The State [1980] PNGLR 27, the ratio that disciplinary offences are something quite distinct from crimes.

Again we agree with the approach taken by the learned judge of first instance in placing emphasis on the fact that s. 85 occurs under a part of the Act headed “Disciplinary Offences, Board of Inquiry and Appeals”. The very first section of this part states that an officer who “commits a breach of this Act ... is guilty of a disciplinary offence and is liable to be dealt with and punished under this Part”. One would therefore be forgiven in assuming that the various sections which occur under Pt VII are all involved with disciplinary matters or the disciplinary consequences flowing from a public servant’s conviction for a criminal offence (as in s. 83). Whilst it is true that under s. 26 of the Interpretation Act headnotes, marginal notes, and footnotes do not form part of the provisions in an Act, it is therein specifically stated that chapters, parts, divisions and subdivisions shall be taken as parts of the Act. In this instance, I think this adds considerable weight to the fact that s. 85 though contained in div. 6 headed “Miscellaneous”, is nevertheless still a disciplinary offence. We do not agree with the appellant’s submissions that his Honour placed too much weight on the “Part heading”.

Mr Molloy, however, presses most strongly his submission that any conduct which amounts to an act against the “peace and good order of the country” must of its very nature be on all fours with a crime against the State, and certainly an “offence” within the meaning of s. 37(3) of the Constitution.

The search for a satisfactory definition of “crime” is not an easy one. Counsel referred the court to some of the words appearing in Ch. 1 of Cross and Jones’ Introduction to Criminal Law, (8th ed.) wherein the authors readily acknowledge their indebtedness to a number of other authorities including the classic “Outlines of Criminal Law” by Kenny. Counsel has extracted the following ingredients of a composite definition of the word “crime” from that chapter:

He says that each of these elements exists in the case of an “offence” against s. 85 of the Public Service Act. We would certainly agree with the existence of the first element in any definition and although there may be problems in respect of the second we do not think it is necessary to spend time in this area for it is on the third aspect where greater difficulties are encountered. We would prefer to adopt some words appearing in the earlier 6th ed. of Cross and Jones’ Introduction to Criminal Law which suggest that the third element is not defined merely as a penalty, but a penalty in the form of a “fine or imprisonment”. Obviously, of course, such fine or imprisonment may be either imposed or suspended, and the latter totally or in part.

Mr Molloy drew attention to a part of the judgment of Goddard L.J in R. v. Army Council; Ex Parte Sandford [1940] 1 KB 719 at 724 and 725. However one would also be well advised to bear in mind the opening words in the judgment of the Lord Justice: “In my opinion, it is desirable to keep as strictly to the facts of this case brought before us as one can”. One must look at the words of s. 85 themselves, the nature of the Act in which those words occur and the Part of the Act in which they are used. We do not think such an exercise could lead to the conclusion that s. 85 has created a criminal offence. Apart from these matters it is obvious that no fine or imprisonment can be imposed, under s. 85. Certainly consequences will follow, consequences which will have a considerable financial effect on the public servant. Just as consequences will follow if one is civilly negligent in a motor vehicle and an adverse judgment may spell financial ruin to a man and his family, so dismissal from the public service may do likewise. The appellant is really saying, in the ultimate, that any act which has an adverse consequence amounts to a criminal offence because a form of penalty follows. In our view however the “penalty” must be something more than a mere consequence. It must reduce itself in the final analysis to a penalty by way of fine or imprisonment. Only in this way can a matter amount to a crime when combined with elements one and two.

Finally, we find little sympathy for the suggestion that because the draftsman uses the phrase “against the peace and good order of the country” this is intended to mean against the “State” as that term is used in the criminal law. In our view the draftsman has only stated the obvious, when he spells out that a strike by a country’s public service would throw the entire nation into at least temporary chaos and would hardly be conducive to either peace or good order. It is further not surprising that the State would authorize its employing authority to dismiss public servants who went on strike under certain circumstances. The section makes it clear to all that the conduct covered therein will be viewed most seriously. It engages in language perhaps more descriptive than is ordinarily used by the legislative draftsman, but we do not believe it thereby creates a crime or an offence against the State.

It follows from what we have said therefore that grounds (a) and (b) in ground 2 are not substantiated. There is no basis for saying that s. 85 is anything other than a disciplinary offence either in whole or in part and certainly it cannot be said to amount to a criminal offence which thus attracts the protection of s. 37(3) of the Constitution.

Further, there was no error on the part of his Honour in ruling that a constitutional question did not arise. Although his Honour does not stipulate that the appellant’s proposition that an “offence” under s. 85 of the Public Service Act was criminal rather than disciplinary is a proposition either trivial, vexatious or irrelevant under s. 18 of the Constitution the inference is obvious. Consequently there was no necessity to refer the matter to the Supreme Court and issue an injunction in the meantime.

BREDMEYER J: The appellant’s main argument is that s. 85 of the Public Service Act, (Ch. No. 67), is unconstitutional by virtue of s. 37(3) of the Constitution. Section 85 has been quoted in full above and as has been pointed out it comes under the part of the Act dealing with disciplinary offences and, by s. 26 of the Interpretation Act, parts, divisions, and subdivisions of an act form part of the provision. Section 85 comes under “Division 6 — Miscellaneous”. The Parts and the Divisions are as follows:

The title of Pt VII suggests that all the sections in that part are dealing with Disciplinary Offences, Boards of Inquiry and Appeals. One needs to examine the sections in more detail to see if this is true in general and particularly in relation to s. 85. I note that the “Boards of Inquiry and Appeals” referred to in the title to Pt VII are Boards of Inquiry into Disciplinary Offences by Departmental Heads (ss 72 to 79), and Boards of Appeals hearing appeals from punishments imposed for disciplinary offences (ss 70, 71 and 76 to 79). Thus every phrase in the title “Disciplinary Offences, Boards of Inquiry and Appeals” relates to disciplinary offences. This in general terms supports the view that every section which comes under that Part relates to disciplinary offences.

But I wish to look at the sections in more detail. Section 65 defines disciplinary offences. I quote part of it.

is guilty of a disciplinary offence and is liable to be dealt with and punished under this Part.”

Section 85 is a section of the Act, so to take part in a strike is to breach the Act and thus by definition to commit a disciplinary offence. Section 85(2) provides that an officer adjudged by the Commission after investigation and hearing to be guilty may be summarily dismissed by the Commission without regard to the procedure prescribed in this Act for dealing with disciplinary offences. The normal procedure for dealing with a disciplinary offence is as follows. The departmental head first decides whether the offence should properly be dealt with as a minor or serious disciplinary offence. In either event the departmental head lays the charge, gives the officer an opportunity to reply to the charge, the departmental head considers the charge, and if proved, imposes the punishment. In the case of a serious disciplinary charge the punishments open are a fine, a reduction in pay or classification, a transfer, or a recommendation to the Commission for dismissal. The officer has a right of appeal on the grounds of innocence or severity of punishment to an independent Appeal Board chaired by a judge. So s. 85 when read with s. 65(1) and the other sections of Pt VII means that an officer who takes part in a strike has very definitely committed a disciplinary offence but instead of having his offence dealt with in the normal way by the departmental head with a right of appeal to an independent Appeal Board as I have described, he may have it investigated and heard by the Commission and, if found guilty, may be dismissed with no appeal. I think if possible that the government, instead of using s. 85(2), could elect to charge the striker with a serious disciplinary offence (it could hardly be a minor one) in the normal way under s. 68 and impose some punishment less than dismissal; but it is not necessary for me to decide that point. The point I am making here is that s. 85 when read with s. 65 and in the whole context of Pt VII of the Act very definitely creates a disciplinary offence.

Part VII of the Act makes a strong contrast between disciplinary offences and criminal offences. Sections 83 and 84 specifically deal with “criminal offences”. When a person is charged with a criminal offence he may be suspended by the departmental head normally without pay. (This contrasts with suspension pending the hearing of a disciplinary offence which is normally suspension with pay ss 68(1), 68(2)(b), 80). If the officer is convicted by “a court of competent jurisdiction” in addition to the punishment imposed by the court, the Commission may reduce him to a lower rank or classification or dismiss him from the Public Service.

I turn now to s. 37(3) of the Constitution. “A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court”. The appellant contends that the word “offence” there should be given a wide interpretation to include taking part in a strike under s. 85 of the Public Service Act. I am very definitely of the view expressed above that the s. 85 offence is a disciplinary offence and not a criminal offence. So the question here is: Should the word offence in s. 37(3) be limited to a criminal offence or should it be interpreted widely to include a disciplinary offence?

As allowed by s. 24 of the Constitution I have looked at the Final Report of the Constitutional Planning Committee 1974 Pt 1, 5.1.10, on its recommendations which were translated into s. 37 without obtaining any guidance as to the ambit of the word “offence”. By Sch. 1.5 of the Constitution: (1) Each Constitutional Law is intended to be read as a whole; and (2) All provisions ... words, expressions ... in a Constitutional Law shall be given their fair and liberal meaning. I propose to apply the first of these maxims to s. 37(3) to read it “as a whole” with the other subsections of s. 37 and then to read it “as a whole” with s. 159.

Section 37 is headed “Protection of the Law” and uses the word “offence” or “offences” repeatedly. There is no mention of “criminal offence” or “criminal offences”. The word offence is used repeatedly and it is fair to assume that the constitutional framers and the draftsman have used it in the same sense throughout s. 37. The word offence is used repeatedly in s. 37 in connection with phrases which are taken from the criminal law. I quote some of them:

“shall be afforded facilities to examine ... witnesses called before the court by the prosecution”, subs. (4)(f)

“No person who ... has been tried by a competent court for an offence and has been convicted or acquitted shall be tried again for that offence ... except upon the order of a superior court made in the course of appeal or review”, subs. (8)

The phrases there are taken from the criminal law. They are different from the phrases used in connection with disciplinary offences in the Public Service Act. When a charge is made under the Public Service Act, s. 68, the departmental head decides if the charge is “sustained” or not, or “proved” s. 74. Under s. 85 of the Act, the Commission conducts an “investigation and hearing” and may find the officer “guilty”. There is no mention in those and the surrounding sections of a “trial”, “prosecution”, “conviction” or “acquittal”. I conclude that the word “offence” in s. 37(3) of the Constitution, reading it with the rest of s. 37 as a whole, means a criminal offence.

I now wish to consider s. 37(3) together with s. 159 of the Constitution which reads:

(1) Subject to Subsection (3), nothing in this Constitution prevents an Organic Law or a statute from conferring judicial authority on a person or body outside the National Judicial System, or the establishment by or in accordance with law, or by consent of the parties, of arbitral or conciliatory tribunals, whether ad hoc or other, outside the National Judicial System.

(2) Nothing in, or done in accordance with, Subsection (1) affects the operation of Section 155(4) or (5) (the National Judicial System).

(3) No person or body outside the National Judicial System, has, or may be given, power to impose a sentence of death or imprisonment, or to impose any other penalty as for a criminal offence, but nothing in this subsection prevents:

(a) the imposition, in accordance with law, of disciplinary detention or any other disciplinary punishment (other than death) by a disciplinary authority of a disciplined force on persons subject to the disciplinary law of the force; or

(b) the imposition, in accordance with law, of disciplinary punishments (other than death or detention) on members of other State or provincial services; or

(c) the imposition of reasonable penalties (other than death or detention) by an association on its members for breaches of its rules.

(4) In Subsection (3)(a), “disciplined force” has the same meaning as in Section 207 (definition of ‘disciplined force).”

The “National Judicial System” is defined by ss 155 and 172 as the Supreme Court, the National Court and other courts established by statute. The “State Services” are established by s. 188 and include the National Public Service, the Police Force, the Papua New Guinea Defence Force and the Parliamentary Service. I have already said that I think “offence” in s. 37(3) means “criminal offence”. I consider that s. 37(3) and s. 159(3) can and should be read together as a whole. Section 37(3) provides, inter alia, that a person charged with a criminal offence shall be tried by an “independent and impartial court”. Section 159(3) says that the only court that can punish for a criminal offence are the official courts of the National Judicial System — but excluding certain disciplinary punishments which can be imposed under certain laws. That I think is a complete answer to the appellant’s constitutional argument. I do not consider that the disciplinary offences of the Public Service Act are criminal offences but, even if they are, they are expressly saved by s. 159(3) of the Constitution.

I conclude that s. 85 of the Public Service Act is constitutionally valid; that a public servant who takes part in a public service strike can have his conduct investigated and heard by the Commission and, if found guilty, can be summarily dismissed from the Public Service. He has no right to have his charge tried by an independent court. He is not however deprived of all rights. Under s. 85 the Commission is required to investigate the charge and give the officer a hearing. Under the underlying law and s. 60 of the Constitution the Commission in giving the officer a hearing is required to observe certain of the principles of natural justice, for example the officer must know the case he has to meet and be given the opportunity of answering it and of putting his own case see de Smith, Judicial Review of Administrative Action (4th ed. at 203), and Iambakey Okuk v. Fallscheer [1980] P.N.G.L.R. 274. I say certain of the rules of natural justice, because one of them — the right to a hearing by a person or tribunal free of interest and bias — has been expressly excluded by the Constitution and the Public Service Act. Also if the officer’s dismissal was not done in accordance with law the officer would have a right of review to the National or Supreme Court under s. 155(4) of the Constitution.

I consider that the trial judge was correct in refusing the interim injunction. The trial judge briefly summarized the relevant principles and referred to his earlier decision Employers Federation of Papua New Guinea v. Papua New Guinea Waterside Workers and Seamen’s Union and Another (unreported National Court judgment No. N393 dated 11 October 1982), where the principles are stated at greater length. The appellant has not challenged that statement of the principles. Unlike the trial judge, I consider that the question of the constitutional validity or invalidity of s. 85 was a serious question of law but that “the balance of convenience” did not favour the granting of an injunction. Applying the fourth matter listed by the judge in the Employers Federation of Papua New Guinea case I consider that, if the members of the plaintiff’s union had been dismissed and they sued and, on the substantive trial of the action s. 85 of the Public Service Act was ruled unconstitutional, they could be adequately compensated by an award of damages for their lost wages whilst dismissed and by an order for reinstatement in the Public Service.

[xxviii]Infra. 208.

[xxix]Infra. 208.

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Papua New Guinea Law Reports

Public Employees Association of PNG v Public Services Commission [1983] PNGLR 206 (28 June 1983)

Papua New Guinea Law Reports - 1983