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Ellis v Ombudsman Commission of PNG; Re Poreporena Freeway Commission of Inquiry [1993] PNGLR 458 (23 September 1992)

PNG Law Reports 1993

[1993] PNGLR 458 - Ellis v Ombudsman Commission of PNG; Re Poreporena Freeway Commission of Inquiry 

[1993] PNGLR 458

N1174

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE APPLICATION OF GRAHAM ELLIS, CONSTITUTING THE POREPORENA FREEWAY COMMISSION OF INQUIRY, FOR LEAVE TO APPLY FOR JUDICIAL REVIEW OF A DECISION MADE ON 8 SEPTEMBER 1992 BY THE OMBUDSMAN COMMISSION

V

OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA

Waigani

Sheehan J

18 September 1992

21-23 September 1992

ADMINISTRATIVE LAW - Judicial review - Ombudsman Commission - Confidentiality and secrecy for information and documentation acquired in course of proceedings - Privilege from disclosure or discovery.

Facts

The plaintiff applied for judicial review of the decision of the Ombudsman Commission declining to produce certain documentation requested by the plaintiff Commission of Inquiry. The Ombudsman contended that the documents requested were privileged from production and inspection.

Held

Privilege from production or inspection may be claimed under the common law or statute. The decision to allow or reject the claim to privilege is at the discretion of the court. The Ombudsman Commission may claim privilege under s 4 of the Organic Law on the Duties and Responsibilities of Leadership, but not on its own discretion. The Commission must, therefore, make a clear statement by affidavit on the status of the documents and claim the privilege as required by the Organic Law.

Cases Cited

Marvin v Attorney-General (1986) unreported New Zealand High Court A168/84.

Paice v Attorney General [1986] NZHC 143; [1986] 2 NZLR 257.

Counsel

R Pato, for the plaintiff.

D Canning, for the defendant.

23 September 1992

SHEEHAN J: This is an application for judicial review of a decision of the Ombudsman Commission declining to produce certain documentation requested by the plaintiff Commission of Inquiry.

The Poreporena Freeway Commission of Inquiry (hereafter the Freeway Commission) was established by the Prime Minister on 30 August 1992 in pursuance of his power under s 2 of the Commissions of Inquiry Act Ch 31.

By summons dated 31 August 1992 and served the following day, 1 September 1992, the Chief Ombudsman was summoned to appear before the Freeway Commission and to produce documents listed in the schedule to the summons that reads:

Schedule

"1.      All documents (including but not limited to original documents, copy documents and draft documents) relating to or referring to:

(a)      the proposed freeway from Port Moresby Seaport to Port Moresby Airport (otherwise known as the 'Poreporena Freeway');

(b)      any agreement or draft agreement relating to the said Poreporena Freeway involving any one or more of the following parties:

(i)       the Independent State of Papua New Guinea;

(ii)      Kinhill Kramer Pty Ltd;

(iii)     Curtain Bros (Qld) Pty Ltd;

(iv)     Curtain Brothers Papua New Guinea Pty Ltd.

(2)      All Annual Returns received from:

(a)      Rabbie Namaliu MP

(b)      Paul Pora MP

(c)      Anthony Temu MP

(d)      Lukas Waka MP

relating to the period from 1 January 1991 to date or any portion of the period from 1 January 1991 to date including any covering letters, schedules or annexure thereto together with any correspondence in relation to any such Annual Return."

By a letter dated 8 September, the Ombudsman Commission replied to the summons. It pointed out its general duty to maintain secrecy in relation to its proceedings and the need to preserve confidentiality of information and documents, and referred to provisions of s 219(7)(c) of the Constitution, ss 20 and 35 of the Organic Law on the Ombudsman Commission.

But while claiming privilege under these provisions, it did not completely decline to answer the summons, saying:

"In light of the summons you have issued, the Commission has decided, in the exercise of its independent discretion and in view of the exceptional circumstances of this case, that it is in the public interest that it produce to you a large number of documents in its position which fall within part 1(one) of the summons".

The Ombudsman Commission, however, did decline to supply the statements made by persons named under s 4 of the Organic Law on the Duties and Responsibilities of Leadership, pointing out that it was prohibited by that section from doing so.

The Freeway Commission, being under the impression that a considerable amount of documentation relevant to its inquiry was being withheld, lodged an application for judicial review of the Ombudsman Commission decision, asking for orders that the material held be produced.

The orders sought are set out in the statement filed pursuant to Order 16 of the Rules National Court. They summarise the issues before the Court.

The relief sought is:

"(a)     an order of certiorari to remove into this Honourable Court and quash a part of the decision of the Ombudsman Commission made on 8 September 1992 whereby the Ombudsman Commission decided that:

(i)       only a certain number of documents in the possession of the Ombudsman Commission be produced to the Commission of Inquiry and that certain other documents in the possession of the Ombudsman Commission be withheld from production or disclosure to the Commission of Inquiry as required by a Summons to Produce Documents issued by the Commission of Inquiry to the Ombudsman Commission.

(b)      Additionally or alternatively a declaration that the decision of the said Ombudsman Commission that in the exercise of its discretion:

(i)       only a part of the documents required to be produced to the Commission of Inquiry pursuant to Schedule 1 of the Summons to Produce issued by the Commission of Inquiry to the Ombudsman Commission be produced is null and void.

(c)      Further and additionally as to that part of the decision of the Ombudsman Commission that no leadership return be produced to the Commission of Inquiry pursuant to Schedule 2 of the Summons to Produce issued by the Commission of Inquiry to the Ombudsman Commission, an order pursuant to Section 4(5) of the Organic Law on the Duties and Responsibilities of Leadership for the production of the subject returns."

Subsequent to proceedings being commenced, it has been determined that, far from there being a multitude of documents, privilege is claimed for but a few. It is now agreed that the documents withheld from the Commission of Enquiry comprise:

"(a)     approximately 12 documents ....

(b)      all internal memorandums, witness statements and transcripts of interviews.

(c)      Annual statements of the persons named."

Mr Pato, made it clear that no orders in respect of (b) were being sought, that is the internal memoranda, witness statements or interviews. At issue, then, is the claim that the 12 untitled documents and the 4 annual statements should be produced to the Freeway Commission.

APPLICANT'S SUBMISSIONS

Mr Pato submitted that the Ombudsman Commission enjoyed no statutory right to immunity from obeying a summons for production of documents to a legally constituted commission of inquiry.

While acknowledging that the Ombudsman had a "general duty to maintain secrecy in relation to its proceedings and to preserve the confidentiality of information and documents it had obtained", that duty, he said, did not amount to a right in substantive law to decline to answer any lawful summons.

In its refusal to produce documents to the Freeway Commission, the Ombudsman Commission had pointed to s 219(7)(c) of the Constitution and s 20 of the Organic Law on the Ombudsman Commission to justify its action.

Mr Pato submitted that s 219(7)(c) created no substantive law of immunity for the Ombudsman Commission. Looking at s 219, it can be seen that it sets out the functions of the Commission. It commences as follows:

"219.   Functions of the Commission

(1)      Subject to this section and to any Organic Law made for the purposes of Subsection (7), the functions of the Ombudsman Commission are ...."

There then follows the investigative duties of the Commission. Subsection (7) provides for the procedures to be followed:

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

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

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

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

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

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

Mr Pato submitted that, obviously, this provision of the Constitution is not self executing. It directs the creation of an Organic Law to provide for these matters. Accordingly, one must look to the Organic Law to see just what provisions have been made "to ensure the secrecy or confidentiality of secret or confidential information".

The relevant sections are s 20 and s 35.

Section 20 requires that the members or officers of the Commission, before entering on any exercise of duties of office, shall make oath or affirmation that he or she will at all times maintain secrecy in relation to the affairs of the Commission and, in particular, will not directly or indirectly communicate or disclose information coming to their knowledge in course of the performance of their duties as a member of the Commission, except under compulsion or obligation of law.

Counsel for the Freeway Commission contended that, while s 20 imposed a duty of confidentiality, the manner in which this section is framed shows that it, nonetheless, recognises that this duty is limited to the normal proceedings of the Commission and disclosure might be necessary "under compulsion or obligation of law or as provided by law".

He also submitted that it would be strange if the Ombudsman Commission has the freedom to disclose information obtained under confidentiality for its own purposes and yet not be subject to orders of disclosure in any other lawfully constituted judicial proceedings.

As for the privilege claimed by the Ombudsman Commission under s 35(3) of the Organic Law on the Ombudsman Commission, it was Mr Pato's submission that it did not give an unqualified privilege but simply the same privilege as if the Ombudsman's inquiries or proceedings were proceedings in a court of law.

Section 35(3) reads as follows:

"Anything said or any information supplied or any document, paper or thing produced by any person, in the course of any inquiry by or proceedings before the Commission under this Law are privileged in the same manner as if the inquiry or proceedings were proceedings in a Court."

To avail itself of that privilege, it was submitted that documents in its possession had to be declared to have been acquired in the course of proceedings of the Commission; and since no such justification had been claimed by the Chief Ombudsman, then it was not exempted from production of them to the Freeway Commission.

As for the personal statements of income of the four(4) persons made under s 4 of the Organic Law on the Duties and Responsibilities of Leadership, it was submitted that s 4(5) made it clear that there was no lawful blanket over these returns. Section 4(5) provided that there could be disclosure in the course of the duties of the Ombudsman Commission itself and in the course of proceedings under the Leadership Code and "(c) under an order of a court of competent jurisdiction".

Mr Pato submitted that since the brief of the Freeway Commission and its duties were plainly before this Court, it could take judicial notice of the issues at stake and, accordingly, make an order for the production of those returns.

RESPONDENT'S SUBMISSIONS

For the Ombudsman Commission, Mr Canning submitted that the combined affect of the provisions of s 219 of the Constitution and s 18(6), s 20(3) and s 35(2)(3) of the Organic Law on the Ombudsman Commission is that the Ombudsman Commission is subject to a strict duty to maintain secrecy and confidentiality in the carrying out of its constitutional functions. It could only be relieved of this duty in circumstances outside the proper purposes of the Ombudsman Commission, in situations where the person from whom the documents had been obtained gave consent.

It was further submitted that the issue of the summons by the Freeway Commission requiring the Ombudsman Commission to produce the documentation, in fact, constitutes a serious threat to the independence of the Ombudsman Commission. Such an action runs directly counter to the provisions of s 217(5) of the Constitution, which states that in the performance of its function under s 219: "the Commission is not subject to direction or control by any person or authority".

Mr Canning cited s 18(6) of the Organic Law on the Ombudsman Commission to emphasise the duty of secrecy imposed on the Ombudsman Commission, in that it ensures that such information cannot be used and is, in fact, not admissible as evidence against any person providing that information, in other proceedings. Including it would seem, a Commission of Inquiry.

Section 18(6) is as follows:

"Except on the trial of any person for perjury in respect of his sworn testimony, no statement made or answer given by that or any other person in the course of any inquiry by or any proceedings before the Commission is admissible in evidence against any person in any court or at any inquiry or any other proceedings, and no evidence in respect of proceedings before the Commission shall be given against any person".

Two New Zealand cases were cited: Marvin v Attorney General (unreported A168/84 of 20 October 1986) and Paice v Attorney General [1986] NZHC 143; [1986] 2 NZLR 257. Both were decisions of the New Zealand High Court when considering the affect of Ombudsman legislation similar to our own and similar, in particular, to s 18(6). Specifically, those cases were cited in support of the proposition that any document which is brought into existence for the purposes of an investigation by the Ombudsman Commission cannot be admitted into evidence in a commission of inquiry and that, accordingly, such documents cannot be required to be produced under summons.

It was acknowledged that those two decisions also indicate that not all documents coming into the possession of the Ombudsman Commission are admissible in another court or inquiry, but it was argued that, nonetheless, even if those documents were admissible (whether by virtue of the fact they had been obtained in some manner not being in an investigation of, or proceedings by the Commission, or were available in another form somewhere else), the overall effect of the statutory provisions were that no officer of the Ombudsman Commission could be compelled to give evidence or produce documents unless a provision of the Organic Law made it permissible. As there is no such Organic Law provision, there can be no compulsion.

Counsel for the Ombudsman Commission also pointed to s 35 of Organic Law on the Ombudsman Commission to support the contention that no member or employee of the Commission was obliged to give evidence or produce documentation. That section reads:

"35.    Privilege

(2)      A member of the Commission or an officer or employee of the Commission shall not be called to give evidence in any court, or in any proceedings of a judicial nature, in respect of anything coming to his knowledge in the exercise of his functions.

(3)      Anything said or any information supplied or any document, paper or thing produced by any person in the course of any inquiry by or proceedings before the Commission under this Law are privileged in the same manner as if the inquiry or proceedings were proceedings in a Court."

Section 35(2) was cited as authority that a member of the Commission is not a compellable witness in court proceedings and reinforces the overall obligation of secrecy imposed by s 20 of the same Organic Law.

Section 35(3), it was contended, was equally plain in its provisions, but Mr Canning maintained it also confers a special status on documents produced to the Ombudsman Commission. He submitted that just as documents so produced are privileged in the same manner as if the inquiry or proceedings were in a court, then, as well as the immunity to orders for production of documents arising in the course of the Ombudsman Commission's inquiries or proceedings, there is a further privilege akin to pre-trial discovery for the purposes of court proceedings. That is, any documents that come into the possession of the Commission prior to investigation or proceeding or for a purpose other then investigation or proceedings are also exempt from production.

It was submitted this is so because there is, in law, an implied undertaking that documents produced during pre-trial discovery are subject to an implied undertaking that they will not be used for any other purpose. Therefore, without the consent of the person supplying them, such documents cannot be used or disclosed for any other purpose.

In such circumstances, the Ombudsman Commission would be obliged to seek the consent of any person producing documents to it before disclosing them to any other. It was the Ombudsman's submission, too, that the terms of the oath of office required by s 20 further reinforced the obligation of secrecy and confidentiality on the Commission and its staff.

Mr Canning also disputed the Freeway Commission's contention that the provisions in s 20 and the oath of secrecy envisage that such information might be supplied under compulsion of a law, such as the Commissions of Inquiry Act. He said that the provisions in that section only mean that, if in any given judicial proceedings there was an obligation to provide that information, there would, in fact, be no breach of duty as to secrecy.

The sum of the submissions on behalf of the Ombudsman Commission were, that the Commission's of Inquiry Act, to the extent that it purports to be able to oblige a member of the Ombudsman Commission to produce documents, is inconsistent with the Organic Law on the Ombudsman Commission. It is, therefore, invalid to that extent. Or, in the last resort, whether it is inconsistent or not, the schedule to the Organic Law, that is, the oaths required of officers of the Ombudsman Commission, do not allow production of documents for a commission of inquiry.

With regard to the production of the personal statements of the four persons named, the Ombudsman Commission's submission supported paragraph 6 of the Chief Ombudsman's affidavit of 17 September 1992. That is, "its response was foreclosed by s 4(5) of the Organic Law on the Duties and Responsibilities of Leadership, which prohibits the disclosure of annual statements and information given to the Ombudsman Commission under s 4 (of that law)". In passing, it is noted that the Ombudsman in that affidavit does not specifically refer to the qualifying provision, namely s 4(5)(c) which states that such information or returns may be disclosed upon the order of a Court of competent jurisdiction.

DECISION

In the normal course of trials, judicial proceedings, or inquiries, all persons or parties having an interest in, or possession of, information or documentation relevant to the inquiry are amenable to summonses or orders to attend and produce that evidence.

But while the law recognises that, in the normal course, documents relating to matters touching on an inquiry should be disclosed, there are exceptions. In special circumstances, the law also recognise that documents may be privileged from production and inspection.

This privilege extends to three main classes. The first is evidence or documentation which would, or might, tend to incriminate the person supplying the documentation. A person has the right to remain silent and not incriminate himself. The second class is documents protected by legal professional privilege. The law recognises, the Constitution recognises, that total confidence in the relationship of lawyer and client is an essential part of dispute resolution and the function of the courts.

Thirdly, there are documents which may be privileged on the grounds of public policy. These include documents relating such matters as national defence and international policy. Also included are the proceedings of statutory bodies specifically protected by their empowering acts. The Commissions of Inquiries Act and the Organic Law on the Ombudsmen Commission fall within this class, and these statutes are the concern of this dispute.

The special exemptions from giving evidence or producing documents are not merely a matter of practice and procedure but rules of substantive law, recognised both by the common law and by Parliament in creating the particular statutes. Indeed, it is described in Halsbury's Laws (4th ed vol 13, para 86) as a principle of constitutional law.

But it is fundamental that this privilege is not some special exemption from compliance with the laws of the country. The privilege is not self executing in the hands of the party that may be accorded the privilege. All parties, whether the State, a statutory body, or an individual, are subject to the law and the jurisdiction of the courts. It is the courts that uphold the privilege.

In statutory privilege, the common link in statutes is found in the phrases that define the privilege; phrases that stipulate that information, evidence, documentation or the like that are acquired "in the course of any inquiry or proceedings" are exempt. It is also found in oaths of office prohibiting the disclosure of information acquired "in the course of or during functions as an officer".

The Freeway Commission would have it that these phrases, governed with provisos for disclosure by compulsion of law, indicate that such confidentiality is subject to the ordinary operation of law and means that the Ombudsman Commission's information is amenable to production during a lawful inquiry. That is not so.

I accept, as Mr Pato submitted, that s 219(7) of the Constitution does not confer any rights on the Ombudsman Commission on issues of secrecy and confidentiality. It is simply a direction that an Organic Law provide for those matters. But I do not agree that such information as is acquired in the course of inquiries or proceedings is intended to be available upon summons in any other proceedings.

The Ombudsman Commission, on the other hand, has asserted that it has the sole right to decide when and what it will declare. It said in its submission that the Commission may "disclose such matters as in its opinion ought to be disclosed" in two situations. First, where the disclosure takes place for the purposes of an investigation being carried on by the Ombudsman Commission, so that the matter before the Ombudsman Commission can be properly investigated. Secondly, where the disclosure is made in a report made by the Ombudsman Commission, so that the grounds for its conclusion and recommendations can be supported. Clearly, the production of documents to a commission of inquiry cannot be justified on either of these grounds. Therefore, s 20(3) does not permit the Ombudsman Commission to disclose documents to a commission of inquiry.

Given that submission, the statement of the Ombudsman Commission in its letter of 8 September 1992 to the Freeway Commission is perhaps significant as showing the confusion it has, both as to the extent and limits of its privilege. It said that:

"In light of the summons you have issued, the Commission has decided, in the exercise of its independent discretion in view of the exceptional circumstances of this case, that it is in the public interest that it produce to you a large number of documents in its position which fall within part one of this summons."

The two assertions plainly do not agree, and both are in error to the extent that they maintain the privilege is the prerogative of the Ombudsman Commission alone. The link phrases referred to above say no more and no less than that privilege is accorded to information, including documentation, that has been acquired during the performance of the statutory body's functions, and such information or documentation cannot be used for any other purpose. If that is claimed, then the courts will in the normal course recognise that privilege, but the decision to allow or reject the claim to privilege is, and remains, the discretion of the court.

That is not saying that the courts can overrule a protection, a privilege provided by statute. It does mean that the courts have the jurisdiction to enquire and be satisfied and to ensure that the privilege claimed is valid.

It must also be said that for the court to carry out its own function in a lawful manner, it must give full weight to any privilege plainly set out by statute. That does not prevent the court from exercising its supervisory jurisdiction to consider challenges to the validity of such a claim, even to the extent of examining documents themselves, if need be. Although that course would not be taken as a matter of course, or simply done on a general challenge, it is a course open to the court.

But if a claim to privilege is asserted in terms that the statute stipulates, the court will generally accede to that claim without more. Indeed, it will of its own motion move to ensure that the protection that the statute engenders is upheld. But the claim must be made.

The privilege, however, does not go to include each and every document that comes into the possession of the Ombudsman Commission. There may be documents that are inter-party, or basic documents to a transaction which, although produced by one party to the Ombudsman Commission, even under confidence, are not, in fact, the private preserve of that party. Paice v Attorney-General [1986] NZHC 143; [1986] 2 NZLR 257 held that material prepared for the purposes of submissions to the Ombudsman was not discoverable; but material that was in existence before the Ombudsman investigation and would otherwise have been discoverable remained discoverable.

Before finally dealing with this issue, it is convenient to dispose of the application regarding the four annual statements.

Section 4(5)(c) of the Organic Law on the Duties and Responsibilities of Leadership states that:

"Statements and information given to the Ombudsman Commission or other authority under this section shall not be revealed to any person except ... under an order of a court of competent jurisdiction".

In reviewing the Ombudsman Commission decision to decline to supply the Freeway Commission with these statements, it is plain that that decision was made in accordance with the law. It was not only a lawful decision, but it would have been unlawful for the Ombudsman Commission to have done otherwise in the absence of an order of a competent court.

Mr Pato submitted that there was sufficient evidence before this court, taking judicial note of the brief of the Freeway Commission, such that it would be appropriate for this Court to make an order for discovery of those statements. I'm not sure that I consider these proceedings to be appropriate for the Court to make sure an order, but even if they were, any court of competent jurisdiction would require specific reasons and evidence as to the need before making any such order. Those reasons and that evidence are not present here.

Returning to the 12 untitled documents, it is my view that the Ombudsman's position, as disclosed in the correspondence and the affidavit filed, claims too much. While this Court is mindful of the high office entrusted to the Commission and the requirement for impeccable integrity, the Commission cannot simply answer a summons for production with a claim of confidentiality based on its own discretion. It must claim privilege, stating in fact that the documents or information sought have been obtained in the course of the Commission's proceedings or inquiries. In my view, any such claim should also state whether the documents are private to the parties supplying them and obtained upon undertakings of confidentiality and thus, inadmissible in any other proceedings. The manner in which claim to privilege has been made so far is inadequate.

Having reached that conclusion, it might be contended that a decision of this Court under judicial review should be to uphold the claim of the Freeway Commission. However, I am not satisfied that that is the appropriate decision. Bearing in mind this Court's duty to protect the statutory privilege, and mindful of the Commission's own concern for its duty of confidentiality, it seems that the Commission's position can be clarified, either by the Court seeing the documents itself or by directing that the Ombudsman Commission state its position on these documents with the particularity I have outlined above.

The latter, in my view, is the appropriate course to take. Given the time frame of the Freeway Commission, I think it is appropriate that the Ombudsman Commission make a clear statement by affidavit on the status of the documents that it now holds by 9.30 tomorrow morning.

Lawyer for the plaintiff: Pato Lawyers.

Lawyer for the defendant: Ombudsman Commission.