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Kavali v Wama and Western Highlands Provincial Liquor Licensing Board [1993] PNGLR 504 (22 October 1993)

PNG Law Reports 1993

[1993] PNGLR 504 - Sir Thomas Kavali v Peter Wama and Western Highlands Provincial Liquor Licensing Board 

[1993] PNGLR 504

N1179

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF THE WESTERN HIGHLANDS PROVINCIAL LIQUOR (LICENSING) ACT 1986;

SIR THOMAS KAVALI

V

PETER WAMA AND THE WESTERN HIGHLANDS LIQUOR LICENSING BOARD

Mount Hagen

Woods J

9 September 1993

22 October 1993

CONSTITUTIONAL LAW - Suspension of provincial government - Role of Administrator - Whether has powers to suspend, appoint members of Liquor Licensing Board - Power of direction to the Board - Vested in National Executive Council - Organic Law on Provincial Government s 98.

Facts

Declarations were sought challenging the suspension and new appointments by the first defendant of the members of the Western Highlands Provincial Liquor Licensing Board (the Liquor Board). The first defendant was the Administrator of the suspended Western Highlands Provincial Government. The power to appoint members of the Liquor Board was vested by provincial law in the Provincial Executive Council. The provincial government had been suspended by the national government.

Held

1.       The power to assume the legal identity of a suspended provincial government is vested in the National Executive Council under s 98 of the Organic Law on Provincial Government.

2.       The Administrator of a suspended provincial government is a delegate of the national minister to direct the public service through the provincial secretary.

3.       The National Executive Council has no power under the Organic Law on Provincial Government to delegate to the Administrator the powers of appointment under provincial legislation.

4.       The suspensions of members of the Liquor Board and the making of new appointments were void and of no effect.

5.       The delay of the plaintiff in seeking declarations meant it would be unjust to grant declarations invaliditing licences issued by the Liquor Board appointed by the Administrator.

Cases Cited

Kumar v Wama [1993] PNGLR 38.

Counsel

P Kunai, for the plaintiff.

P Dowa, for the defendants.

22 October 1993

WOODS J:  This is an application for certain declarations concerning the first defendant's suspension of the plaintiff and other sitting members of the Western Highlands Provincial Liquor Licensing Board (the liquor Board) and the provisional appointment of a new board. These acts were done by the first defendant as Administrator by documents dated 29 December 1992. Then, in July 1993, the first defendant appointed persons to a new Liquor Board.

The plaintiff submitted that the Administrator acted without power in suspending the Liquor Board appointed by the Provincial Government and appointing a new Liquor Board. Under the provincial Liquor Licensing Act, the authority to appoint the Board is given to the Provincial Executive Council, acting on the advice of the provincial Minister for Liquor Licensing. Following the suspension of the Provincial Government, it is submitted, the power to appoint under the Act goes to the National Executive Council (NEC) or the Minister for Village Services and Provincial Affairs, in accordance with s 98 of the Organic Law on Provincial Government.

The role, legal identity, and powers of the administrators of suspended provincial governments was discussed fully by me in Kumar v Wama [1993] PNGLR 38. As the State has taken no action to challenge the rulings I made in that case, I must assume that my rulings are accepted as correct. So, what is the effect of those principles enunciated in that case on the problem before me now with the Liquor Board here in the Western Highlands?

Mr Wama's appointment as Administrator is no more than as the senior public servant, acting as the delegate of the national minister to provide general direction and control of the public service through the Provincial Secretary. He has no legal status under any legislation, as the power to assume the legal identity of the provincial government is given to the NEC under s 98 of the Organic Law on Provincial Government. The Administrator has no power to appoint boards under any provincial legislation. That can only be done by the national minister or the NEC. Thus, the power to appoint the members of the Liquor Licensing Board under s 5(4) of the Provincial Liquor Licensing Act can only be vested in the national minister or the National Executive Council.

Whilst the letter from the NEC dated 21 December 1992 directs Mr Wama to take whatever appropriate action is necessary to administer the affairs of the Western Highlands Province, there is no power in the Organic Law for the NEC to delegate the powers of appointment in provincial legislation to the Administrator. The Administrator's role is one of direction and control and advising the national minister of any appointments required, but not to do them himself.

With respect to liquor licensing, the Administrator would have the power to direct the Provincial Secretary about the government's views. The Provincial Secretary, as the chairman of the Liquor Board, would be obliged to make those views known to the Board and act accordingly. Of course, one would expect that the Police Commander or his appointee would support the Provincial Secretary.

It would appear that the Administrator has been badly served with advice, or the lack of it, from the Department of Provincial Affairs and the Department of the Attorney-General. Under the Organic Law on Provincial Government, he had no power to suspend or establish the Liquor Licensing Board under the Western Highlands' Provincial Liquor Licensing Act. That power is clearly vested in the Minister for Village Services and Provincial Affairs. Therefore, the purported suspensions dated 29 December 1992 and the purported appointments dated 29 December 1992 and 10 August 1993 are void and of no effect.

The plaintiff is also seeking a declaration that all liquor licences purported to have been issued by the Liquor Board appointed by the Administrator are invalid and illegal. Whilst it may be expected that that would follow, the matter has been complicated by the delay in the plaintiff seeking these declarations. In the interests of justice and common sense, the holders of licences should not be penalised through what was not their fault. Therefore, I cannot declare their licences to trade to be illegal but, rather, that in so far as they have a licence to operate, it should be allowed to complete its term.

Of course, the members of the Board that existed before the suspension must realise that its very existence depends on the national minister, and it is open to the Administrator through the Provincial Secretary to convey the National Government's concern and suggestions to the Board for the good government of the Province. This is where the national minister takes over the role and function of the provincial minister in s 8 of the Liquor Licensing Act of giving the Board general direction concerning the government's policy with regard to liquor licensing, and the Board being bound to give effect to such policy.

Lawyer for the plaintiff: P Kunai.

Lawyer for the Defendants: P Dowa.