judicial method and the interpretation of ...a "purposive" mode, with the latter...

JUDICIAL METHOD AND THE INTERPRETATIONOF PAPUA NEW GUINEA'S CONSTITUTION

By PETER J. BAYNE*

In the latter half of 1979 the Supreme Court of Papua NewGuinea delivered judgment in two cases in which it was called uponto decide a number of issues of fundamental significance to theinterpretation of that country's Constitution. In the course of thislitigation, several of the Justices of the Court became embroiled inconfrontation with the Government. The potential for such conflicthad been foreseen by the makers of the Constitution, who took theview that conflict would be ameliorated if the Court adopted anautochthonous interpretation based on the social philosophy of theConstitution and on its legislative history. This article surveys thelegal issues raised in these cases and evaluates the modes of interpretation employed by the Court by contrasting an "absolutist" witha "purposive" mode, with the latter expressing the intention of theConstitution's makers. It concludes that for the most part the Courtadopted the absolutist mode, and that thereby the autochthonousnature of the Constitution has been undermined.

Two cases decided by the Supreme Court of Papua New Guinea inSeptember 1979, and the course of political events associated with thesedecisions, received widespread publicity in the Australian press, and, tosome extent, the decisions contributed to a change of government in thatcountry on 11 March 1980. In addition, the cases are of considerable legalsignificance to the interpretation of Papua New Guinea's Constitution,1and more generally to the field of comparative constitutional law, and itis the legal aspect of these cases that is the focus of this article.

The first of these cases, Premdas v. The Independent State ofPapua New Guinea2 (henceforth referred to as the Premdas case),concerned the legality of the revocation of an entry permit of a universityteacher (Dr Premdas) who worked also for a Government Minister. Thesecond, Premdas v. The Independent State of Papua New Guinea ReRooneys (henceforth referred to as the Rooney case), was a prosecutionon three counts of criminal contempt of court of Mrs Nahan Rooney,the then Minister for Justice. The first count related to a letter thatMrs Rooney wrote to the Chief Justice of the Supreme Court of Papua

* LL.B. (Hons) (Melb.), J.D. (Chicago); Senior Lecturer in Legal Studies,La Trobe University.

1 The Constitution of the Independent State of Papua New Guinea is its fulltitle, but is referred to in this text as the Constitution. A general commentary isGoldring, The Constitution of Papua New Guinea (1978).

2 Unreported (Supreme Court case no. 160, 3 September 1979).3 Unreported (Supreme Court case no. 163, 11 September 1979).

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122 Federal Law Review [VOLUME 11

New Guinea as a consequence of the grant by a National Court4 judgeof a temporary injunction to restrain the implementation of the decisionto revoke the entry permit of Dr Premdas.5 Following public statementsby the Chief Justice,G Mrs Rooney made statements to media representatives which resulted in the second and third counts of contempt. TheSupreme Court first delivered judgment in the Premdas case, and by amajority of four to one upheld the legality of the revocation of the entrypermit.1 A differently constituted court, again by a majority of four toone, found Mrs Rooney guilty on all three counts of contempt andsentenced her to eight months' imprisonment.8

The article is concerned primarily with analysing the modes of interpretation of the Constitution employed by the judges in these cases.This examination will reveal the extent to which a choice of modepermits a choice of rule and therefore of the outcome of a particularissue. In addition, the discretion permitted to judges to determine issuesof fact, or to draw inferences from the facts, also permits choice of rule,for fact findings determine both which rules apply and how they apply.This study cannot reveal why one mode of interpretation, or one versionof the facts, rather than another, is chosen, but it can reveal that thesechoices exist.

That these choices do exist is of particular significance to the task ofjudicial review on constitutional grounds. Constitutions distribute andlimit the power to make and enforce laws and the decisions of thecourts have a direct bearing on what governments can and cannot do inthe regulation of society. Further, judgments on constitutionality can beavoided by governments only by the amendment of the relevant constitution. A grasp of these aspects of judicial review, and of the discretionpermitted to the judiciary in this task, is essential to a proper understanding of the role of the judiciary in a system of government.

A focus on modes of interpretation will, it is hoped, be of comparativeinterest. Constitutional systems in the English law tradition are oftenbased on similar premises and conceptions, and bear a striking similarityto each other. However, differences in the manner in which the sametopic is dealt with will often render a comparison of the result of interpretation of little interest, other than as demonstrating that it is possibleto deal with the same topic in different ways. However, a study of howthose results were arrived at by the courts, that is, of the mode of

4 The National Court is a superior court of record and of unlimited jurisdiction(Constitution, SSe 163, 166), and when sitting normally comprises a single Justice;the Supreme Court is the final court of appeal, and when sitting normallycomprises three or five Supreme Court Justices. To date, all Justices of the NationalCourt have been appointed to the Supreme Court.

SIn/ra p. 131.GIn/ra p. 151.'I Prentice C.J., Raine Deputy C.J., Saldanha and Andrew IJ. in the majority;

Wilson J. dissenting.8 Raine Deputy C.I., Saldanha, Wilson and Greville-Smith 11. in the majority;

Kearney 1. dissenting.

1980] Interpretation 0/ Papua New Guinea's Constitution 123

interpretation, should be of more direct comparative interest, for thereason that a mode employed in one system might be directly comparable to that employed in another.

The Premdas and Rooney cases involved the interpretation of anumber of the Basic Rights sections of the Constitution, and this too isa topic of interest in comparative constitutional law. From the perspectiveof Australian readers these cases illustrate the manner in which Australianlawyers have approached the task of interpretation and in this experiencethere could be lessons for those interested in the debate about whetherAustralian jurisdictions should adopt a Bill of Rights.

Modes of interpretation have been of interest to constitutionallawyers, and in relation to the federal polities in Australia and in theUnited States of America some have identified a broad distinctionbetween, on the one hand, an absolutist or literalist approach to interpretation, and, on the other, approaches which are based more explicitlyon a wider range of considerations.9 Absolutism owes something toanalytical jurisprudence, in which law is seen as a self-contained system,and to a view of the "Rule of Law" as formal equality. By this mode, aconstitution or a law is interpreted according to its literal terms, andrecourse to extrinsic aids such as parliamentary debates is shunned.There are several other features of this mode: a law will be construedaccording to its legal operation, and not by its substantive or practicaloperation in society; the words of the constitution will be taken to havea fixed meaning, and there will be an assumption that there is noconflict between constitutional provisions; and in order to avoid anassessment of how the constitution and the laws operate in society, thecourts will employ qualitative standards, such as "direct" and "indirect",or "interstate" and "intrastate", which purport to avoid measurementby quantity, but which fail to recognise the interrelatedness of phenomenain the real world.10 The absolutist approach attempts to minimise theelement of discretion in the choice of result, and because it is assertedthat this is the result, there is a refusal to weigh competing social interestsor to take into account the policies pursued by other branches ofgovernment.

Other modes of interpretation do not assume that a constitution canbe interpreted only according to its terms and in the light of legalconcepts. The United States Supreme Court, somewhat in the manner ofPound's "sociological jurisprudence",11 recognises that interpretationpermits discretion, and that it should be exercised by a balancing ofsocial interests, an approach which is evident in its application of the

9 E.g. Lane, The Australian Federal System (2nd ed. 1979) 1175-1205 concerningthe Constitution of the Commonwealth of Australia, and Ducat, Modes of Constitutional Interpretation (1978) passim concerning the Constitution of the UnitedStates of America.

10 Lane, Ope cit. 1182-1184.11 Ducat, Ope cit. 117.


Bill of Rights amendments of the United States Constitution. The HighCourt of Australia has not been so explicit, although concepts such as"federalism" or "democracy" which are employed to buttress a particularinterpretation embody views as to how society is best organised.12

Although absolutism has been the dominant trend in Australia, someHigh Court Justices have viewed the Constitution "as a broad outline onlyand, in addition, as an organic instrument for the Australian federalsystem".13 As an organic instrument a constitution will provide aframework for government that remains valid despite social change, andbecause social change is the dynamic element it is the Constitutionwhich must be adapted by the judiciary by a creative interpretation.Thus, the Constitution should not be taken to express fixed absolutes,and legal categories should reflect social reality.

Papua New Guinea's Constitution attempts to influence the judiciaryto prefer a non-absolutist approach, and contains a statement of thesocial interests which should influence all governmental bodies, includingthe judiciary, in the exercise of their functions. A brief examination ofthose aspects of the Constitution which bear on the judicial role isnecessary in order to evaluate the modes of interpretation employed inthe Premdas and Rooney cases.

The Constitution came into operation on 16 September 1975, PapuaNew Guinea's Independence Day. Effective internal self-governmentmay be dated from April 1972, when a National Coalition led byMr Michael Somare gained control of the ministerial offices as theyexisted under the constitutional arrangements of that time.14 The Coalitionappointed a Constitutional Planning Committee (C.P.C.), composedentirely of Papua New Guinean members of the House of Assembly, tomake recommendations for an independence constitution. The C.P.C.presented its final report to the House of Assembly in mid-1974,15where after debate some significant amendments were made to it. Theamended report became the basis of a draft Constitution, which wasdebated, amended, and then adopted by a Constituent Assembly. ThisAssembly had a membership identical to that of the House, and sat inits chamber, but did not purport to exercise any of the powers of theHouse under the Papua New Guinea Act 1949-1975 (Cth). The objectof this exercise was to ensure that the Constitution would as a matter oflaw be autochthonous,16 that is, that it would not owe its validity to any

12 See the judgments in Western Australia v. The Commonwealth (1975) 134C.L.R.201.

13 Lane, Ope cit. 1188.14 See Bayne and Colebatch, Constitutional Development in Papua New Guinea,

1968-1973, New Guinea Research Unit Bulletin no. 51 (1973) 123-129.15 Final Report of the Constitutional Planning Committee (1974), published by

the Government Printer, Port Moresby, Papua New Guinea.16 A concept that owes much to Wheare, Constitutional Structure 0/ the Com

monwealth (1960) ch. 4.

1980] Interpretation of Papua New Guinea's Constitution 125

other body of law. The Constitution also reflects a recommendation ofthe C.P.C. that all pre-Independence laws be revoked immediately priorto Independence, and then be adopted by the Constitution, so that alllaws in the country would "stem from that Constitution".11

It may be accepted that this method of adoption of the Constitutionand the laws achieved legal autochthony. Whether in content it is "homegrown" is more debatable, and the answer to be given would dependvery much on what should be regarded as Papua New Guinean ratherthan foreign. In the context of this article, it is relevant to note brieflyseveral strands in the comments made by the C.P.C. on the sources andobjectives of its proposals. The C.P.C. emphasised that it wished tobreak from the colonial past and its institutions, and saw its task asan opportunity to "change the existing foreign-imposed system of government",18 which it viewed as "a blatant denial of our humanity".19It wished to "rediscover" Papua New Guinean political and socialorganisations, but recognised too that some of these created "constraintson our vision of freedom" and should "be left buried".20 It acknowledged that Papua New Guinean ways had been "open to externalinfluences" and that it should "make intelligent use of foreign ways".21There is also manifest in the report a consciousness that Papua NewGuinea is a third world nation, and although the C.P.C. was eclectic inits search for inspiration, it is clear that the experience of the newnations of the Commonwealth, particularly those in Africa and theCaribbean, exerted the most influence on the Committee.

Little need be said about the structure of government under theConstitution. Section 99 (2) refers to the National Parliament, theNational Executive, and the National Judicial System as the "threeprincipal arms" of government, and section 99 (3) provides that "inprinciple" the powers and functions of these arms should be keptseparate from each other. However, it is misleading to see the separationof powers theory as the organising principle behind the structure ofgovernment, for in addition to these three arms, the Constitution createsa number of independent offices and bodies which are concernedprimarily to check the exercise of executive power (such as theOmbudsman Commission and the Auditor-General), or to exercisepowers which would otherwise inhere in the National Executive (suchas the Judicial and Legal Services Commission and the Public

17 Final Report of the Constitutional Planning Committee (1974) 15/2. Thisrecommendation was implemented by Schedule 2.6 of the Constitution. See Lynch,"The Adoption of an Underlying Law by the Constitution of Papua New Guinea"(1976) 4 Melanesian Law Journal 37.

18Id.2/1.19Id.2/14.20 Id. 2/13.21 Ibid.


Prosecutor).22 The "Westminster export-model" of constitutionalism23

is reflected also in the provision that the Constitution, by virtue of itssuperiority to ordinary legislation, constitutes a limit to the extent oflegislative and executive power,24 and further in the role accorded tothe judiciary to ensure the enforcement of these limits.2S

Among the most important of these limits on power are sections 32to 58, the Basic Rights provisions. In general, those sections follow the1959 Nigerian model,26 although apparent also are the influences of thepre-Independence Human Rights Act 1973 (P.N.G.) and of theConstitution of Nauru. Some features of the Papua New Guineanscheme should be noted briefly. The Constitution distinguishes betweenthose rights or freedoms which protect all persons in Papua NewGuinea and those which operate only in favour of citizens.27 Thecatalogue of rights and freedoms follows the pattern found in most ofthe constitutions of the new nations of the Commonwealth of Nations,and, following that pattern, almost all of these rights and freedoms arespecifically qualified, which means of course that laws which fall withinthese qualifications will be valid notwithstanding that they conflict withthe protected rights and freedoms. Furthermore, some of the protectedrights are subject to a general qualification which permits laws to bemade to protect the public interest in such matters as defence, publicsafety, public order and public welfare, and which are "reasonablyjustifiable in a democratic society having a proper respect for the rightsand dignity of mankind".28

That people should be governed by law underlay, in the C.P.C.'sview, "the very idea of having a constitution at all".29 To give effect tothis notion, the C.P.C. accepted that the judiciary should be independentof any other person or authority and that it should exercise the power ofconstitutional review. However, the C.P.C. was acutely aware of someof the problems inherent in such a judicial role.

22 Although the Supreme Court Justices have in a number of cases referred toseparation of powers as an element of the Constitution, there has not yet been afull analysis of how this theory should bear on interpretation. The case which goesfurthest in this direction is In the Matter of a Reference by the OmbudsmanCommission pursuant to Section 19 of the Constitution, unreported (SupremeCourt case no. 136, 6 October 1978), in which there were sharp differences ofopinion about the significance to be attached to s. 99 (2) .

23 See De Smith, "Westminster's Export Models: The Legal Framework ofResponsible Government" (1961 ) Journal of Commonwealth Political Studies 2.

24 S. 11 (1).25 SSe 18 and 57.26 See Campbell, "Papua New Guinea Government: Consideration of a Bill of

Rights" in Young (ed.), Constitutional Development in Papua New Guinea (1971)65-67 for a general discussion.

27 Infra p. 137.28 S. 38(1); see generally Chalmers, "Human Rights and What is Reasonably

Justifiable in a Democratic Society"(1975) 3 Melanesian Law Journal 92.29 Final Report of the Constitutional Planning Committee (1974) 8/1.


The C.P.C. acknowledged several disadvantages of judicial review:that the courts "tend to be formalistic and legalistic ... [and] approachthe Constitution as if it were like ordinary law . . . [and] sacrifice thespirit for the letter of the Constitution"; that judges "are not free of theirbiases and emotions"; that "the courts become the final arbiters of theConstitution"; and finally, that the courts "have a limited capacity toeffect compromises", particularly in situations that call for politicalsolutions, and that by entering such areas, "the role and functions of thecourts themselves become controversial", thus leading to "seriousdamage" to their role.SO The C.P.C. argued too that the courts did not"exist in a vacuum", and that they must be "politically conscious" to theextent that they must take account of the goals and wishes of the societyin which they live.3l The C.P.C. stated the dilemma that this approachposed for the courts:

They must on the one hand avoid appearing to encroach upon therole of the legislature or to act as a brake on the executive government's legitimate efforts in trying to promote development; yet onthe other hand they must endeavour to ensure that an injustice isnot done in a particular case, and that the rights of individuals orminority groups are not unreasonably overridden.32

One solution recommended by the C.P.C. was to withdraw from thecourts the power to resolve some constitutional issues, although theonly example it cited was that the courts should not adjudicate onquestions relating to the procedures of Parliament.53 More generally,the C.P.C. felt that the courts could be assisted to arrive at decisions inconformity to society's goals by a provision directing them to takeaccount of the National Goals in cases of doubt, and by the cutting ofthe legal tie between "our judicial system and that of Australia", so thatPapua New Guinean law could then "reflect, to a much greater degreethan at present, our own values and circumstances".34 It has been seenthat the legal tie was cut, and it is now appropriate to consider theprovisions of the Constitution concerning its interpretation.

Interpretation of the Constitution

The C.P.C. viewed the Constitution as a law which would not onlyfacilitate a transfer of power and create the institutions of government,but in addition provide a philosophy to be pursued by the governmentand by the society as a whole.35 This philosophy is expressed in the longpreamble to the Constitution. After a long adoption clause, the preamblesets out five National Goals and the Directive Principles which relate to

30 Id. 8/15.SlId. 8/1.32 Ibid.33 See now Constitution s. 134.34 Final Report oj the Constitutional Planning Committee (1974) 8/2.35Id. 2/1.


each goal. It concludes with an acknowledgement that persons in thecountry are entitled to certain Basic Rights, and a declaration of theBasic Social Obligations of all such persons. Before turning to therelevance of these matters to interpretation, account must be taken ofthe fifth National Goal, which is "to achieve development primarilythrough the use of Papua New Guinean forms of social, political andeconomic organization". The first Directive Principle accompanyingthis goal calls for:

(1) a fundamental re-orientation of our attitudes and the institutions of government, commerce, education and religiontowards Papua New Guinean forms of participation, consultation, and consensus, and a continuous renewal of theresponsiveness of these institutions to the needs and attitudesof the People; ...

This principle thus applies to the exercise of the judicial function.The C.P.C. argued that the dilemma faced by the courts could be

ameliorated if they were directed to take the National Goals intoaccount,36 and this recommendation finds expression in the Constitutionin section 25, which provides that:

(1) Except to the extent provided in Subsections (3) and (4),the National Goals and Directive Principles are non-justiciable.

(2) Nevertheless, it is the duty of all governmental bodies toapply and give effect to them as far as lies within their respectivepowers.

(3) Where any law, or any power conferred by any law (whetherthe power be of a legislative, judicial, executive, administrative orother kind), can reasonably be understood, applied, exercised orenforced, without failing to give effect to the intention of theParliament or to this Constitution, in such a way as to give effect tothe National Goals and Directive Principles, or at least not toderogate them, it is to be understood, applied or exercised, andshall be enforced, in that way.

(Sub-section (4) relates only to the Ombudsman Commission.) Section63 makes similar provision with respect to the effect of the Basic SocialObligations. Schedule 1.3 (1) provides that the Preamble is part of theConstitution, but goes on to provide that it "expresses general principlesand therefore must be read subject to any other provision of thisConstitution, though it may be used as an aid to interpretation in casesof doubt". Thus, sections 25 and 63 allow the courts considerable scopeto allow the Preamble to influence the interpretation of the Constitutionand the application of the law generally. Schedule 1.3 (1) appears toexpress a somewhat narrower principle, but should be read subject tosections 25 and 63.

36 Id. 8/16. Note also s. 158(2), which provides that: "In interpreting the lawthe courts shall give paramount consideration to the dispensation of justice".


However, there are also scattered throughout the Constitution rulesof interpretation which a lawyer would recognise as more orthodoxstatements of the approach to interpretation. Some state rules whichwould in any event have applied if English and Australian practice werefollowed; others liberalise the orthodox rules, and oneS7 is a reversal ofEnglish practice.

Schedule 1.5 contains two concepts which express the essence of theorthodox rules of interpretation:

(1) Each Constitutional Law is intended to be read as a whole.(2) All provisions of, and all words, expressions and propositions

in, a Constitutional Law shall be given their fair and liberalmeaning.

There are a number of other paragraphs in Schedule 1 which restate,classify, or to some extent qualify orthodox rules.38 Section 11 (2)provides that the Constitutional Laws "are self-executing to the fullestextent that their respective natures and subject-matters permit", andsection 10 that all laws should be read and construed subject to theConstitution (and any other superior laws)

so as not to exceed the authority to make them properly given, tothe intent that where any such law would, but for this section, havebeen in t1xcess of the authority so given it shall nevertheless be avalid law: to the extent to which it is not in excess of that authority.

The major defarture from orthodox principle is section 24:( 1) The official records of debates and of votes and proceedings

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

(b) I in the Constituent Assembly on the draft of this Consti-i tution,

together with that report and any other documents or paperstabl~d for the purposes of or in connexion with those debates,may be used, so far as they are relevant, as aids to interpretation where any question relating to the interpretation orapplication of any provision of a Constitutional Law arises.

(2) An Act of the Parliament may make provision for the mannerof proof of the records and documents referred to in Subsection (1).

There is as yet no Act in terms of section 24(2) .The C.P.C.'s view that the courts should develop a body of law

appropriate to Papua New Guinea is also reflected in the Constitution'sprovisions concerning the "underlying law". Section 20 provides thatthis body of law is, until Parliament provides otherwise, as prescribedin Schedule 2, and section 21 provides that the purpose of this schedule"is to assist in the development of our indigenous jurisprudence, adaptedto the changing circumstances of Papua New Guinea". The underlying

37 Constitution s. 24, see text infra.38 Schedule 1.2, 1.3, 1.4, 1.16 and 1.20.


law refers to the unwritten law, and Schedule 2 provides for two mainsources: first, custom, except to the extent that it is inconsistent with aConstitutional Law or statutory law, or "repugnant to the generalprinciples of humanity",39 and secondly, "the principles and rules thatformed, immediately before Independence Day, the principles and rulesof common law and equity in England", except to the extent that theyare inconsistent with statutory law, "inapplicable or inappropriate to thecircumstances of the country from time to time" or, in their applicationto a particular matter, inconsistent with custom.40

These provisions create the possibility that in a particular case theremight be no rule of law that is applicable and appropriate, andSchedule 2.3 (1) directs the courts as to how they should formulate anappropriate rule, particular emphasis being placed on the Preamble asa matter to which the courts should have regard.

Schedule 2 also provides rules for precedent selection. Supreme Courtdecisions are binding "on all other courts, but not on itself".41 Similarly,the National Court is not bound by its own decisions, except that adecision of the court constituted by more than one Judge binds a courtconstituted by a lesser number.42 The Supreme and National Courts are110t bound by pre-Independence decisions of the Full Court of theSupreme Court, in line with the general principle that "no decision oflaw of a court or tribunal that was not established within the NationalJudicial System is binding on a court within it".43 However, Schedule2.12(2) provides that this "does not prevent recourse to the decisionsof law or the opinions of courts or tribunals" outside Papua New Guinea"for their persuasive value".

Thus it is apparent that the C.P.C. was aware that the courts mightadopt an absolutist approach to interpretation, and central to itsrecommended antidote to this possibility were what became sections 24and 25 of the Constitution, which permit reference to the C.P.C. reportand to the National Goals respectively. The concept of the underlyinglaw was introduced to move the courts away from an uncritical application of Anglo-Australian common law.

The approach to interpretation and to rule formulation expressed inthe C.P.C. report and reflected in the Constitution is referred to here asa purposive approach; the purpose being to seek results which reflect thephilosophy in the National Goals, and, where interpretation of theConstitution is concerned, which reflect the C.P.C.'s recommendations(except to the extent that these were modified by the Constitution).

The Premdas and Rooney cases will be assessed with the absolutistand purposive approaches in mind.

S9 Schedule 2.1.40 Schedule 2.2.41 Schedule 2.9 (1).42 Schedule 2.9 (2) .43 Schedule 2.12(1).

1980] Inte pretation of Papua New Guinea's Constitution 131

THE PREMDAS CASE

In Novem er 1978 the coalition of parties which had governed sinceIndependenc broke up, and the major party (the Pangu Pati, led by thePrime Minist r, Mr Michael Somare) formed a new coalition with theformer opposition United Party as the junior partner.44 As a result, anumber of n w Ministers was appointed, including Mr Roy Evara,from the Uni ed Party, as Minister for Primary Industry. In February1979 Mr Evara engaged Dr Ralph Premdas, then a Senior Lecturer atthe Universit of Papua New Guinea (on a contract which was to expirein 1982), to ork for him on an unofficial part-time basis as an adviser.Premdas' wo k soon brought him into conflict with the Secretary ofthe Departm nt of Primary Industry. The latter complained to thePrime Minist r who in April and May directed the Minister to terminatethe services 0 Premdas. The Minister did not comply and the Government decided to take action against Premdas under the Migration Act1963 (P.N.G.).40

On 31 Ma 1979 the Minister for Foreign Affairs and Trade revokedPremdas' Per it to Enter Papua New Guinea under section 7(IA) ofthe Act, whic provided simply that the Minister could revoke such apermit by " otice in writing, served on the holder of the permitpersonally or by registered post". The notice of revocation was servedon Premdas n 7 June, and thereby he became a prohibited immigrantunder section 7(3) of the Act. By letter of the same date, an officer ofthe Departme t of Foreign Affairs and Trade, acting under section 7(4),directed that Premdas leave Papua New Guinea by 4 July. However,Premdas was also informed that he could seek review of his case undersection 7(IB), which provided that a person in his position could apply"to have the otice of revocation [of the entry permit] reviewed by aCommittee of Review". By section 7(IC), it was the duty of the PrimeMinister on r ceipt of such an application to submit it to a Committeeof three Ministers which he would appoint.

On 11 Jun Premdas requested a review of his case, and the PrimeMinister's offi e set down the review for 26 June. He was informed thatthe main reas n for the revocation of his entry permit was that he hadengaged in a tivities considered by the Government to be "disruptiveand detriment 1to the good government of the country, and in particular,your unauthorised involvement and intrusion into the management of theDepartment of Primary Industry".46 Premdas was also told that he orother persons could make written submissions to the Committee, but hissubsequent re uests that he be permitted to attend in person, and thathe be given particulars of the allegation against him were denied.

44 See genera ly Hegarty, "Issues and Conflict in Post-Colonial Papua NewGuinea" (1979) 18 World Review 27, 28-29 especially.

45 The statements of facts are taken primarily from the judgments of RaineDeputy C.J. and'Saldanha J. in the Premdas case.

46 Premdas case, 3 per Prentice C.J.


Premdas had earlier written letters canvassing and rebutting the possiblegrounds for the revocation of his permit, and presumably these werebefore the Committee. The Committee upheld the revocation of thepermit on the grounds that he had interfered unduly in matters outsidehis expertise in the Department, and that his work there had involveda conflict of interest with his role at the University. On 28 June he wasagain ordered to depart from Papua New Guinea on or before 4 July.

On 3 July Premdas sought from the National Court an injunction torestrain the Minister for Foreign Affairs and Trade from taking actionto deport him. The main ground of the application was stated byPritchard J.:

it is claimed that the procedures laid down in the Migration Actare in breach of the Constitution and the Applicant is seeking adeclaration from the Supreme Court that this is SO.47

Pritchard J. was satisfied that there was a genuine argument involvingthe interpretation of the Constitution and issued a restraining order tooperate until the last day of the next Supreme Court sittings, and orderedPremdas "to take steps immediately to have this matter set down forhearing in the Supreme Court".48 Premdas did not take any such steps,and it was not until 20 July that Pritchard J. prepared a reference to theSupreme Court of six questions that he saw were raised by the argumentbefore him in the National Court. This gap, which was never explained,became of significance in the Rooney case.49

(a) Judicial review and privative clauses

The Migration Act 1963 (P.N.G.) contains a very strong privativeclause, and it was in the first place argued by the applicant (Dr Premdas)that it did not bar judicial review of the Minister's revocation of hisentry permit. Section 61AA(I) provides that:

No act ... or decision of the Minister relating to the ... revocationof an entry permit . . . nor any decision of a Committee of Review. . . is open to review or challenge in any court on any groundwhatsoever.

The Supreme Court held unanimously that this provision could not barreview on constitutional grounds. It was reasoned that the Constitutionconferred on both the National and Supreme Courts the power toenforce the Basic Rights provisions and that an Act of Parliament couldnot qualify or remove this jurisdiction in any way.50 Both Saldanhaand Andrew JJ. found further that section 61AA should be read down

47 Premdas v. The Independent State of Papua New Guinea, unreported, 4 July1979, 1; Appendix "B" to the judgment of Kearney J. in the Rooney case(interlocutory judgment), unreported (Supreme Court case no. 163A, 3 September1979).

48ld.3.49 Infra p. 156.50 Premdas case, 7 per Prentice C.J. is illustrative of the view taken by the whole

Court.


under section 10 of the Constitution (the severance clause) so as not toapply to cases where review was sought on grounds which involved theinterpretation of the Constitution.51

The applicant argued also that section 61AA was invalid because itconflicted with section 155 (3) (a) of the Constitution: "The NationalCourt-(a) has an inherent power to review any exercise of judicialauthority . . .". However, section 155 (3 ) (e) then provides for anexception to this general grant where "the power of review is removedor restricted by a Constitutional Law or an Act of Parliament", althoughthis is in turn qualified by the provision in section 155 (5) that in suchcases "the National Court has nevertheless an inherent power of reviewwhere, in its opinion, there are over-riding considerations of publicpolicy in the special circumstances of a particular case . . .". It is notdifficult to see in these provisions the influence of separation of powerstheory, and it should be noted too that by section 159(1), subject tocertain limitations, "judicial authority" may be conferred on "a personor body outside the National Judicial System".

The Court was again unanimous in holding that the powers of theMinister and of the Committee of Review under the relevant sections ofthe Migration Act 1963 (P.N.G.) did not involve the exercise of"judicial authority". Prentice C.J. drew a distinction familiar to systemswhich must grapple with separation of powers concepts:

The exercise of power by administrative bodies is not normallyregarded as an "exercise of Judicial Authority", though sometimessuch bodies are required by their creating statutes to "actjudicially".52

Two other Justices classified the powers under the Act as administrative,or executive, or even as ministerial,53 but did not provide any elaborationas to how these distinctions would be drawn. In his analysis, Prentice C.J.observed that by Schedule 1.2 (1) of the Constitution a "judicial officer"was defined as "a Judge or Magistrate of a court within the NationalJudicial System",54 and this might be taken to suggest that his Honourregarded judicial authority as limited to the authority of such personsand bodies. However, section 159(1) suggests that judicial authority hasa broader connotation, for it contemplates that it can be conferred onpersons and bodies outside the National Judicial System.

In a number of ways the applicant argued that the provisions of theMigration Act 1963 (P.N.G.) which empowered the Minister and theCommittee of Review to take action, or regulated the manner in whichthey exercised their powers, were in conflict with the Basic Rightssections of the Constitution. These arguments will be considered in turn.

SlId. 35 per Saldanha J., 82 per Andrew J.52Id.7.53Id. 34 per Saldanha J., 77 per Andrew J. who also refers to the power as

ministerial.MId. 7.


(b) Section 37(11) and (12)

Section 37 is headed "Protection of the Law", and the C.P.C. took itto be "the equivalent of the 'due process' provision in the United StatesConstitution".50 However, section 37 provides much more than simplythat no person shall be deprived of "life, liberty or property, withoutdue process of law",56 and in 22 sub-sections it regulates in detail theconduct of criminal and civil proceedings. Section 37(11) and (12)appear to have been based on Article 6( 1) of the European Conventionfor the Protection of Human Rights and Fundamental Freedoms,57 andtogether they regulate how the existence of a "civil right or obligation"shall be determined. Section 37( 11) provides that such a determinationmust be made "by an independent and impartial court or other authorityprescribed by law or agreed upon by the parties", and that suchproceedings "shall be fairly heard within a reasonable time". Sub-section( 12) provides that except by the agreement of the parties, or by orderof the court in the interests of national security, such proceedings "shallbe held in public". Section 37(13) permits a court or other authorityto exclude persons from a hearing in certain circumstances, but thispower does not extend to the parties or their legal representatives.

The State conceded that the proceedings before the Minister and theCommittee of Review were not held in public and that the applicant orhis legal representative had been excluded from them.58 The applicantargued that the grant to him of a permit to enter Papua New Guinea,when coupled with his contract of employment at the University,amounted to a civil right protected by section 37(11) and (12).59 Thecourt was unanimous in rejecting this contention. All of the Justicesagreed that no civil right of the applicant was involved, and all relied onthe judgment of Lord Denning M.R. in Birdi v. Secretary of State forHome AfJairsOO in which he held that "civil rights and obligations" inArticle 6(1) of the European Convention denoted those given by thecivil law, and did not extend to administrative procedures, such aslicences or the permissions given to aliens to enter the country.61Prentice C.J. characterised the entry permit as a "mere licence revocableat any time by executive act",62 and cited decisions of the Privy Council,and of the courts of England and of Kenya to support his view that"'rights' were not in question when deportation of aliens was being

50 Final Report 0/ the Constitutional Planning Committee (1974) 5/1/10.06 S. 1 of the Fourteenth Amendment to the Constitution of the United States of

America.57 See generally Jacobs, The European Convention on Human Rights (1975)

76-90.58 Premdas case, 28 per Saldanha J.591d. 8 per Prentice C.J.60 (1975) 119 Solicitors' Journal 322; see also n. 25, infra p. 145.611bid.62 Premdas case, 10.


considered".63 Saldanha J. characterised the decisions of the Ministerand of the Committee as decisions made under "a.public law",64 which isa rather more expansive view of what is not a civil right than thatexpressed by the other Justices.

Thus, in its interpretation of section 37 (11) and (12), the SupremeCourt turned in the first place to a decision on the comparable provisionin the European Convention. However, the position under the Convention is more complex than the judgments in Premdas made apparent, fora leading decision of the European Commission of Human Rights65 hasheld that a civil right is involved where an administrative decision affectsa legal relationship between private individuals. In Premdas it seems tohave been argued that the revocation of the entry permit brought to anend the applicant's contract of employment with the University. However, it is likely that termination was in accordance with a term of thecontract (that is, that an employee have a valid entry permit), andtherefore none of Premdas' rights under his contract were violated. Theother source of judicial authority relied on by a majority of the SupremeCourt were those Commonwealth decisions which characterised an alien'sentry permit as a "licence" or "privilege" rather than a "right".

(c) Sections 42 and 48

Section 42, headed "Liberty of the Person", provides in sub-section(1) a guarantee that "No person shall be deprived of his personalliberty ..." except in a number of specified circumstances which relateto matters such as arrest, sentence of a court, the prevention of thespread of a disease, and so forth. The remaining sub-sections relateprimarily to a person's rights on arrest or detention. Section 48 (1 )guarantees that: "Every person has the right to freedom of choice ofemployment in any calling for which he has the qualifications (if any)lawfully required ...". However, section 48(1) provides also that thefreedom of employment may be qualified by a law passed according tosection 38, which permits general qualifications to be made to thequalified rights. Section 42 does not contain any express reference tolaws made under section 38, although the Court seems to have assumedthat the liberty of the person guarantees could be so qualified, and it ispossible to justify this assumption on the ground that section 42 iscontained in the qualified rights subdivision of the Constitution and thatsection 38 is expressed to apply to all such rights.

The applicant argued that the revocation of his entry permit, togetherwith the threat of deportation, infringed the rights protected by sections

63 Ibid. The decisions cited were R. v. Inspector of Leman Street Police Station;ex parte VenicoD [1920] 3 K.B. 72; R. v. Governor of Brixton Prison,· ex parteSoblen [1963] 2 Q.B. 243; and Re MarIes' Application [1958] B.A. 153 (HighCourt of Kenya).

64 Premdas case, 29.65 The Ringeisen case, discussed in Jacobs, Ope cit. 78-83.


42(1) and 48(1), and that therefore the Migration Act 1963 (P.N.G.)should have complied with section 38.66 In relation to section 42(1), itwas argued that "in that the Minister had purported to act on allegationsof disruptive activities, the applicant was visited with a stigma whichmust be regarded as amounting to a deprivation of his liberty ...".67 TheCourt had little difficulty in disposing of this argument, and all theJustices found in effect that section 42 protected only the right to befree of physical restraint, and that it afforded no protection againstdefamation or threats to character.68

The argument based on section 48 was more tenable. The C.P.C.'srecommendation on this matter, which is followed closely by the Constitution, was meant to incorporate "the principle that a person should beable to freely choose his employment",69 and although the Justices donot refer to the C.P.C. report, they held that section 48(1) guaranteesonly the choice of employment, and not the right or practice of employment. Some of the Justices held further that the revocation of the entrypermit did not have a direct bearing on the applicant's employment, andthat the indirect effect that he could not continue in his employmentwas irrelevant.70

(d) The Basic Rights and non-citizens

The comments of the Justices on the scope of section 37(11) and (12)assumed that those provisions did protect the civil rights of non-citizens.However, in addition to their comments on section 37, a majority ofthe Court71 appears to have adopted a view that in their application tonon-citizens, the Basic Rights sections have a qualified operation. Thisview is of fundamental significance to the operation of those sections.

Prentice C.J. expressed his opinion clearly:

The provisions of the Constitution as to "rights" are in the case ofnon-citizens, to be interpreted "subject to any restrictions imposedby law", so that were the Permit to Enter to be considered "a civilright", it would nevertheless be subject to restrictions imposed bylaw-and I do not apprehend that such a law (in the case ofnon-citizens) need comply with s. 38(2) of the Constitution, theoperation of which would catch measures applying to citizens aswell as aliens, or to citizens alone.72

His Honour reached this conclusion by reasoning which relied on thosesections of the Constitution which permit recourse to its Preamble andto the report of the C.P.C. Prentice C.J. began by taking the view that

G6 That is, by having been adopted by the Parliament after Independence in amanner which satisfied s. 38; see supra p. 126.

67 Premdas case, 9 per Prentice C.J.68ld. 9, per Prentice C.J., 18 per Raine Deputy C.J. and 78 per Andrew J.69 Final Report of the Constitutional Planning Committee (1974) 5/1/12.70 Premdas case, 30 per Saldanha J., 78 per Andrew J.7i Prentice C.J., (with whom Raine Deputy C.J. agreed) and Andrew J.72 Premdas case, 12 (emphasis added).


Basic Rights provisions of the Constitution "may be thought to be farfrom explicit as to which guaranteed rights adhere to aliens".13 He citedsection 24, and then quoted passages from the C.P.C. report whichincluded the comment that "the right to limit the movement of foreigncitizens is part of a country's sovereign rights, and should be retained assuch".14 Prentice C.J. cited Schedule 1.3 for the proposition that"recourse may be had to the Preamble as an aid to interpretation incases of doubt",75 and quoted section 25, which allows recourse to theNational Goals and Directive Principles. His Honour then quoted fromthe declaratory acknowledgement of the Basic Rights in the Preamble,and stressed the phrase therein that such rights were "subject to anyrestrictions imposed by law on non-citizens".7\6 Andrew J. adopted anapproach similar to that of Prentice e.J. citing the same sections of theConstitution and the same passages from the report of the C.P.C.17

However, a view that all of the Basic Rights are, in their applicationto non-citizens, subject to "restrictions imposed by law" would seem tobe contrary to the purport of the Constitution, which provides expresslythat certain Basic Rights operate in favour only of citizens,'J8 the clearimplication being that the other rights do protect non-citizens. TheC.P.C. was clear that the Constitution should distinguish between therights in this manner.'J91 Prentice C.J. was aware that the Constitutiondrew this distinction,SO but he nevertheless held clearly that section 37(11)and (12) do not protect non-citizens. Section 37 is a "fundamentalright" (that is, it cannot be qualified by a law passed according tosection 38), and it is not in that group of sections limited to citizens.

The judgment of Andrew J. is more difficult to follow. Concerningsection 37(11), he found that the Migration Act 1963 (P.N.G.) is arestriction imposed by law on non-citizens within the meaning of thePreamble statement, gave "due weight to this and to the fact that it ispart of the country's sovereign rights to limit the movement of foreigncitizens",81 and concluded that the actions of the Minister and theCommittee of Review under the Act did not involve the determination ofa "civil right or obligation" within section 37 (11). Earlier, Andrew J.had referred to the C.P.C. report in order to understand that Committee'sintention "in relation to the restrictions on the entry of foreign citizensand upon the period during which they may remain",82 and it might be

13Id. 10.74Id. 11, quoting from Final Report of the Constitutional Planning Committee

(1974) 5/1/13.15Id. 10.76Id. 12.77Id. 73-75.18 Constitution, SSe 50-56.19 Final Report of the Constitutional Planning Committee (1974) 5/1/5.80 Premdas case, 10.81Id.78.82Id. 74, referring to that part of the C.P.C. report quoted by Prentice C.l.


thought therefore that he meant no more than that the scope of section37(11) should be determined with this in mind. However, Andrew J.also relied on the statement in the Preamble, which is not limited tothose rights which bear on entry and movement, and in his considerationof sections 42 and 48 he stated, as an independent reason why thesesections could not assist the applicant, that "all of these qualified rightsmust be interpreted, subject, in the case of non-citizens, to any restrictionsimposed by law".83 Again, neither section 42 nor 48 is in the categoryof rights reserved to citizens. (His Honour also overlooked that section37 is a fundamental, not a qualified, right.)

The picture is complicated further by reason of the fact that bothPrentice e.J. and Andrew J. took the view that section 41, which is inthe qualified rights group of rights, could apply to the decisions of theMinister and the Committee of Review, although, as shall be seen infra,both found that in the circumstances of this case it did not apply.

It can only be concluded that neither Prentice C.J. nor Andrew J.considered fully the implications of his reliance on the statement inthe Preamble. It is possible, although only by overlooking some statements in their judgments, to construe their remarks as meaning only thatthe courts should favour an interpretation of those rights which applyto non-citizens which preserves the government's powers to control theentry and residence of non-citizens.

(e) Section 41

This section provides as follows:

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 inthe particular case-

(a) is harsh or oppressive; or(b) is not warranted by, or is disproportionate to, the require

ments of the particular circumstances or of the particularcase; or

(c) is otherwise not, in the particular circumstances, reasonablyjustifiable 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 (l)(a), (b) or (c)

applies in respect of an act is on the party alleging it, and may bedischarged on the balance of probabilities.

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

Andrew J. would appear to be correct in his observation that this section"is perhaps unique in that there is no parallel in any other Constitution

83ld.79.


of the countries of the world".84 The interpretation that has been givento this section by the Court holds greater significance for the future thanany of the other holdings in the case.

The section appears in the qualified rights subdivision of the BasicRights division of the Constitution, and together with sections 38 and 39dealing with the general qualification, and section 40 dealing withemergency laws, forms a group of four sections headed "General" whichcome before the more specific qualified rights. Thus, as a matter oftextual analysis, it would seem that section 41 should be seen as havingsome general effect on the qualified rights. The C.P.C. report providesguidance as to how section 41 could be interpreted. The specificrecommendation that provided the basis for section 41 was expresslylimited to action taken under a law under which a person was "arrested,detained, questioned or searched, or his property entered upon orsearched", and it was recommended that such action should be unlawful"insofar as the force used or the conduct of the persons taking the actionis excessive or oppressive in the actual circumstances of the case".85 TheC.P.C. also referred to this recommendation in the general discussionwhich preceded the recommendations, and indicated that its objectivewas "to provide a safeguard against abuse of or excessive use of a legalpower provided for in this Part".86 (The reference to "this Part" shouldbe construed as a reference to the whole of the Basic Rights provisions.)However, a majority of the Court appears to have given section 41 ageneral application.

Prentice C.l. agreed with counsel for the applicant that section 41should apply to the basic and fundamental rights as well as to thequalified rights, and cited the passages from the C.P.C. report referredto above as indicating on the C.P.C.'s part an "intention of generalapplication".81 However, he argued in addition that section 41 "itselfcontains no reference at all to its being restricted to the support of'rights' ",88 and it would seem that his Honour was swayed more by thelanguage of the section than by the legislative history, for he concludedthat "giving s. 41 a fair and liberal meaning as the Court is instructedto do by schedule 1.5 (2) of the Constitution, it should be regarded asof general application".89 His Honour regarded the application of thecriteria specified in the section as a question of fact, and the test was"whether the Minister and the Committee acted as reasonable men inthe circumstances, having regard to the policy of the act on the one handand the various provisions of the Constitution on the other".90 In elaboration of this test, Prentice C.l. cited passages from the English Court of

84 Ibid..80 Final Report of the Constitutional Planning Committee (1974) 5/1/33.86 Id. 5/1/20.87 Premdas case, 14.88 Ibid.89 Ibid.90 Id. 15.


Appeal decision in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation,91 and from the House of Lords decision in Padfield v.Minister for Agriculture, Fisheries and Foof192 on the principles to beapplied in the control by the courts of discretionary powers vested inadministrative bodies. Thus, it would seem that Prentice C.J. regardedsection 41 as controlling the validity of any action taken under a statutory power, and that it should not be limited to action taken under alaw which qualified the Basic Rights. That his Honour did not requireany showing from the applicant of which of the Basic Rights were to besupported by section 41 further suggests (although not conclusively)that he did not regard such a showing as necessary.

Neither Raine Deputy C.J. nor Saldanha J. (with whom Wilson J.agreed) discussed the scope of application of section 41, althoughneither required any showing of the Basic Rights in issue. The testadopted by Raine Deputy C.J.-whether, on the balance of probabilities,the action taken "was so drastic and so clearly wrong as to be manifestlyunreasonable in the sense that nobody could come to such a decision,placed in the Minister's shoes, or those of the Committee"93-might bethought to be stricter than that adopted by Prentice C.J. Saldanha J. putthe test to be applied more succinctly: "did the Minister act within thescope of his responsibility for the good government of the country?",Mand referred to the cases cited by Prentice C.J.

Andrew J. did discuss the scope of section 41, but only to the extentof observing that:

It appears in the introductory part to the qualified rights section.However, the section is in wide terms and does not restrict itself toqualified rights. It may be that it applies also the fundamentalrights but I find it is not necessary to decide that question here.9s

His Honour stated the test for the application of the section in wordssimilar to those used by Prentice C.J. Thus, it would seem that Andrew J.held that, for the purposes of this case, section 41 should be regardedas limited to the qualified rights, but he did not require any showing bythe applicant as to which of those rights were affected by the exercise ofpower under the Migration Act 1963 (P.N.G.). Indeed, in his holdingsthat sections 37(11) and (12),42 and 48 were not relevant, Andrew J.excluded the possibility that any of the qualified (or fundamental) rightswere in issue.

The applicant relied on an argument that he had been working on anunpaid basis for a Minister with the approval of the Prime Minister, andthat in these circumstances the revocation of his entry permit was invalidwithin clauses (a) and (b) of section 41 ( 1). Both Prentice e.J. and

91 [1948] 1 K.B. 223.92 [1968] A.C. 997.93 Premdas case, 22.MId. 32.95Id.79.


Saldanha J. (with whom Wilson J. agreed) rejected a major strand ofthis argument by their finding that the applicant must be taken tohave known that the Prime Minister wished that he be dismissed,96 andPrentice e.J. added that by remaining in his position with the Ministerthe applicant "must have known he was possibly exposing himself toexecutive action".9'1 These Justices were not prepared to accept that thePrime Minister should have chosen to dismiss his Minister, andSaldanha J. gave a realistic assessment of the Prime Minister's difficulties:

as he had only recently formed a new Coalition Government consisting of the Pangu Party and the United Party and while he himselfwas a member of the Pangu Party Mr Evara was a member ofthe United Party, the Prime Minister may have had his difficulties.98

The State relied on the evidence of the Secretary to the Department thatthe applicant had access to classified material without the necessaryclearance, and that his presence had led to a serious morale situationamong the staff.

The Court held that the actions of the Minister and of the Committeeof review were not invalid under section 41. Saldanha J. concludedsimply that "decisions of Ministers are governed by policy and expediencyand, the fact that this particular decision may have resulted in incidentalbut not necessarily intentional, harshness to the applicant, is surelyirrelevant".99 His Honour did not indicate whether this approach todecisions by Ministers should be taken in every case, but in view of hiscitation of Padfield's case, where a Ministerial discretion was reviewed,it is unlikely that he intended this result. The other Justices reliedexplicitly on what they saw to be relevant policy considerations in theapplication of the Migration Act 1963 (P.N.G.). Prentice C.J. foundthat the Minister and the Committee "had acted within well understoodprinciples as to a sovereign State's maintaining control over the activitiesof aliens within its borders";l Raine Deputy C.J. found that "[f]ew areasinvolving the intervention of the Executive can be more sensitive thanthe presence on a country's soil of aliens thought to be undesirable oreven dangerous";2 and Andrew J. relied partly on his view that theintention of the Constitution was to "give the Sovereign State controlover non-nationals within the country".3

Thus, the whole Court found that on the facts section 41 did notapply. However, all regarded the section as relevant, and, with thepossible exception of Andrew J., regarded it as of general application.This view could have the consequence that most challenges to adminis-

96Id. 16 per Prentice C.l., 31 per Saldanha J.91Id. 16.98Id.32.99 Ibid.lId. 16.2Id.21.3Id.80.


trative action of governmental and statutory authorities, whether national,provincial or local, could be maintained as a section 41 challenge. Theprinciple stated in section 41 (1) (b) is similar to the basic grounds forchallenging the exercise of administrative discretion, and the Justicesacknowledged this by their citation of the leading English cases in thisarea.

If a challenge to administrative action based on section 41 is regardedas a constitutional issue, the matter must be decided by the Supreme orthe National Courts. While it is still true in Papua New Guinea that theorthodox administrative law remedies are available only in the NationalCourt, there are other ways, such as a defence to a prosecution, ora civil action against an official, whereby the lawfulness of administrative action can be raised in the lower courts. If a section 41 challengeraises a constitutional issue, these courts cannot decide the matter. Inaddition, to label a dispute "constitutional" gives it a more serious aspectthan most administrative law challenges deserve.

The expansive view of section 41 adopted by Prentice C.J. was basedon Schedule 1.5, which, as will be seen, is the basis for the absolutistinterpretation of the Constitution. Other interpretations were howeverpossible. If section 41 were interpreted by reference to section 38, itcould be seen to apply only to those laws which must rely on the generalqualification for their validity. An interpretation based on the C.P.C.'scomments would restrict it to laws governing arrest and so forth, ormore broadly to any law which may be made under the Basic Rightsprovisions. However, Prentice C.J., who in relation to other issuesfavoured a purposive ,approach, relied on a more literal interpretation.4

(f) Section 59

The applicant argued at all stages of the matter that the Minister andthe Committee had failed to observe the rules of natural justice, andthat on that account the revocation of his entry permit was invalid. TheC.P.C. recommendations on Basic Rights made no reference to naturaljustice, although it may be inferred from the report that the Committeeassumed the principles would apply as part of the received commonlaw.D However, drafts of the Bills for the Constitution included anattempt to state the conditions under which these principles would applyand their basic content, but in the face of arguments that these clauses

4 In his letter to Mrs Rooney, the Minister for Justice, on 13 July 1979, infrap. 151, Prentice C.J., after referring to the Premdas case (which at that stage hadbeen considered by Pritchard J. in the National Court), stated that he was surethat the Minister's advisers, if she had consulted them, would have drawn herattention to s.41 of the Constitution. Pritchard J.'s judgment (see Appendix "B"to the judgment of Kearney J. in the Rooney case, unreported Supreme Court caseno. 163A) does not refer to s.41, and Prentice C.J.'s comment was, at least, aprejudgment that this was an issue.

G Final Report of the Constitutional Planning Committee (1974) 5/1/25.


did not capture the subtlety of the common law, they were redrawn andthe Constitution provides in section 59 only that:

(1) Subject to this Constitution and to any statute, the principlesof natural justice are the rules of the underlying law known by thatname developed for control of judicial and administrative proceedings.

(2) The minimum requirement of natural justice is the duty toact fairly and, in principle, to be seen to act fairly.

Section 60 provides further that in the development of the underlyinglaw the courts should give particular attention to "the development ofa system of principles of natural justice and of administrative lawspecifically designed for Papua New Guinea". The definition of "principles of natural justice" in Schedule 1.2 makes it clear that the contentof those principles was to be ascertained by reference to the underlyinglaw as they may have been altered under section 60 or by any statute.

Thus, Prentice C.J. concluded that section 59 only "defined theprinciples of Natural Justice for the purpose of construing the phrase inthe application of the Constitution",6 and that it could be "read as aninjunction that they shall as so described be applied in administrativeproceedings". He found further that as those sections of the Constitutionwhich did enjoin the application of the principles7 had no relevance tothis case, the only manner in which they could apply here "would be byvirtue of the adoption of the Common Law of the United Kingdom, orby a declaration by this Court of the positive establishment of such aprinciple in the Underlying Law being developed in P.N.G. underSchedule 2.3".8 Saldanha J.9 and Wilson J.10 also found that the applicability of natural justice principles to this case was to be determined byreference to the principles of English common law in force on Independence Day, and by his approach Andrew J. seems to have agreed.11

Raine Deputy C.J. expressed no opinion on this issue.

However, although the Court is clear on the effect of section 59, it isnot clear beyond doubt on the question of whether a natural justiceclaim should be regarded as raising a question of the interpretation ofthe Constitution. The language used by Prentice C.J., viz that section 59

6 Premdas case, 12.7 Ibid. Prentice C.J. referred to s.28(5) (proceedings against "leaders" under

the Leadership Code), s. 37 (22) (proceedings of Village Courts), and s. 37 (11).Wilson J. added as a fourth category decisions made in the exercise of "deliberatejudgement", which s. 62 (1) provides "must not be biassed, arbitrary or capricious":ide 54. On the other hand, Saldanha J. found only two instances where theConstitution required observance of natural justice, viz SSe 28(5) and 37 (22): ide 36.

8Id. 12. There is of course no "Common Law of the United Kingdom", andPrentice C.J. should be taken to be referring to English common law.

9Id.36.10Id.52.11Id. 77-78. Andrew J. simply cited English decisions, and found the Australian

cases to be to the same effect.


defines the principles "for the purpose of construing the phrase in theapplication of the Constitution",12 suggests that he did see a constitutionalissue involved. Wilson J. found that to determine whether the Committeewas bound to observe natural justice required an interpretation of theConstitution,13 and Saldanha J. seems to have accepted the applicant'scontention that natural justice was guaranteed "under the Constitution".14

Again, the comment may be made that if natural justice claims do r~ise

questions involving the interpretation of the Constitution, a largecategory of administrative law challenges are converted to constitutionalquestions. While section 59 clearly recognises that the principles ofnatural justice can apply in Papua New Guinea, it is clear too that itand section 60 contemplate that the content of those principles is to bedetermined under the underlying law and may be altered by the courtsor by a statute. Thus, it is somewhat artificial to regard natural justiceclaims as raising issues of interpretation or application of the Constitution.

On the question of whether the principles of natural justice appliedto the actions of the Minister and the Committee the Court divided fourto one, with Wilson J. in the minority. Prentice C.J. found that underthe common law it was clear that "[p]ersons or bodies exercising powerof deportation of aliens have been held to be acting in executive (oradministrative) and not judicial capacity; and their exercises of discretionin those matters therefore unexaminable [sic]".15 However, Prentice C.J.did concede that Lord Denning M.R. in Schmidt v. Secretary of Statefor Home Afjairs16 had seemed to reject the administrative/judicialdichotomy. His Honour found that the recent Australian decisionsappeared to be to the same efIect.17 Prentice C.J. concluded with theobservation that he was "unpersuaded that the situation in P.N.G. callsfor a declaration that the principles of Natural Justice apply in [these]proceedings".1:8 By this comment his Honour recognised that he was notbound to apply English common law, and that if he found it inapplicableor inappropriate to the circumstances of the country he could formulatea rule to be part of the underlying law under Schedule 2.3. However,Prentice C.J. did not pursue this question other than to assert that hewas unpersuaded that such a formulation was necessary.

Saldanha J. also reached the conclusion that natural justice had noapplication to these proceedings, although his analysis of the law was

12Id. 12.13Id.51.14Id.35.15Id. 13, citing the cases referred to supra n. 63.16 [1969] 2 Ch. 149.17 Citing R. v. MacKellar; ex parte Gaunt (1978) 20 A.L.R. 119; Salemi v.

MacKellar (No.2) (1977) 137 C.L.R. 396; and R. v. MacKellar; ex parte Ratu(1977) 137 C.L.R. 461.

18 Premdas case, 13. Andrew J. adopted the same analysis as Prentice C.J., butdid not consider whether the English and Australian authorities were applicable toPapua New Guinea: id. 77-78.


somewhat different to that of Prentice C.J. Saldanha J. began with theproposition that "the principles of natural justice in force in England asat Independence Day are part of our underlying law by virtue ofSchedule 2.2 of the Constitution".19 However, his Honour did notacknowledge that by Schedule 2.2 (1 ) (b) and by section 60, the courtswere required to consider whether this common law was appropriateto Papua New Guinea, and he made no such inquiry. Looking at theEnglish cases, Saldanha J. found that there was "a wealth of authorityfor the proposition that in England the decision of Immigration officersand the Secretary of State for Home Affairs with regard to the entry andexpulsion of aliens and administrative acts are not subject to theprinciples of natural justice".20

His Honour cited a number of cases,21 including Schmidt v. Secretaryof State for Home AfJairs,22 and in relation to this case observed thatLord Denning M.R. had extended the principle of Ridge v. Baldwin,23viz "that a person who has a right or interest must be given theopportunity of making representations", by introducing the new concept"that a person who has a legitimate expectation should also have theopportunity of making representations".24 In Schmidt, the alien had beendenied an extension of his entry permit, and Saldanha J. found that it wasunnecessary for Lord Denning M.R. to have formulated the legitimateexpectation principle (presumably on the ground that there was no basisfor its application). However, Saldanha J. found that because Premdaswas a case of revocation of a permit, the legitimate expectation principlecould apply if, of course, Lord Denning was correct. His Honour thendiscussed Birdi v. Secretary of State for Home AfJairs,25 and found thatin that case Lord Denning M.R., with the support of Geoffrey Lane L.I.,had extended the legitimate expectation principle to include the case ofan alien in whose favour an amnesty had been declared. However, theCourt of Appeal in Birdi upheld the view of the Home Office that thealien was not eligible to benefit from the amnesty, and Saldanha J. foundthat Lord Denning's comments on the legitimate expectation principlein this case were also obiter dicta. He then cited two English decisions26

to the effect that obiter dicta were not binding, and concluded that the

19Id.36.20 Ibid.2tId. 36-39. In addition to those cases cited by Prentice C.J., supra n. 63,

Saldanha J. quoted a passage from Pear/berg v. Varty [1972] 2 All E.R. 6, 17, andrelied squarely on Schmidt's case.

D [1969] 2 Ch. 149.23 [1964] A.C. 40.24 Premdas case, 39.25 Saldanha J. does not provide a citation for Birdi, and the only available reports

(those in The Times, 12 February 1975, and (1975) 119 Solicitors' Journal 322)do not contain the passages quoted by his Honour; see n. 33, infra p. 147.

26 Cornelius v. Phillips [1918] A.C. 199, 211 per Viscount Haldane, and Flowerv. Ebbw Vale Steel, Iron & Coal Coy. Ltd [1934] 2 K.B. 132, 154 per Talbot J.


principles of natural justice had no application to the proceedings in thePremdas case.27

Wilson J. dissented on this issue, and held that the principles ofnatural justice did apply to the proceedings of the Committee of Review.His Honour also took the view that the applicable law was to bedetermined by reference to English law at Independence Day, and beganhis analysis with a consideration of whether that law should be appliedin Papua New Guinea. Schedule 2.2( 1) (a) excludes the common lawif it is "inconsistent with a Constitutional law or a statute", andWilson J. considered whether the Migration Act 1963 (P.N.G.) shouldbe considered to have this effect. (Apart from Schedule 2.2(1)(a) thisissue should have been considered, for it is part of the English commonlaw of natural justice that the principles may be excluded by statute.)His Honour found that the Act did not have this effect assuming, itseems, that such an exclusion should be "clear or express",28, and that ifthere was an intention to exclude, the legislature would not on the onehand have provided a review procedure, and on the other would haveexpressed the scope of the Minister's discretion in wider terms.29 It maybe queried whether exclusion need be "clear or express", for cases fromboth England and Australia have held that exclusion may arise by theapplication of the expressio unius est exclusio alterius rule of interpretation.30 Schedule 2.2 (1 ) (b) excludes the common law where it is"inapplicable or inappropriate to the circumstances of the country", butWilson J. dismissed this possibility by asserting simply that there werenot such circumstances, "except perhaps those circumstances which gaverise to the recent declaration of a state of emergency in the Highlands".31

Thus, his Honour analysed the English common law, and began withBirdi v. Secretary of State for Home Affairs which he noted had beendecided on 11 February 1975, some seven months prior to IndependenceDay. Thus, he argued, the drafters of the Constitution must, at least, bedeemed to have been aware of "developments in the common law andequity up to the time of the adoption of the Constitution", includingpresumably this "authoritative decision", which "could hardly have

21 Premdas case, 41.28Id.54.29Id.53.30 De Smith, Judicial Review of Administrative Action (3rd ed. 1973) 165. The

provision of a review mechanism could be argued as a basis for the application ofthis maxim; that is, that the mechanism for review is an implied exclusion of anyother procedure. Contrawise, it could be argued that the Act did not stipulate theprocedure to be followed by the Committee of Review. Wilson J.'s conclusion maywell be correct, but his statement of principle appears to be excessive.

31 Premdas case, 53. Part X of the Constitution permits the declaration of anational emergency in relation to the whole or part of the country, and in thissituation most of the Basic Rights provisions may be qualified by emergency laws:s.233. Wilson J. appears to suggest that the underlying law on natural justicewould also contract in its scope of application in a state of emergency, a view inline with the English law: De Smith, Ope cit. 167-168.

1980] Interpretation of Papua New Guinea's Constitution 1~7

been more contemporary".32 This line of argument is hardly convincing.It can safely be asserted that none of the members of the ConstituentAssembly would have been aware of Birdi's case,33 and it is unlikelythat any of the lawyers associated with the preparation of the draft Billsfor the Constitution had knowledge of the case. Thus, the argument ofWilson J. begins by resting on a fiction.

Wilson J. took Birdi's case to affirm the principle that an administrative body will be required to give a person who is affected by itsdecision an opportunity to be heard where "the person has some rightor legitimate expectation of which it would not be fair to deprive himwithout hearing what he has to say".34 He argued that this principle hadbeen established in Schmidt v. Secretary of State for Home AfJairs,35and cited from the judgment of Lord Denning M.R. the passage where theMaster of the Rolls extended the principle in Ridge v. Baldwin.36

Wilson J. also referred to the judgment of Geoffrey Lane L.J. in Birdi'scase, and argued that his Honour had cited a passage from Schmidt's caseS?in which Lord Denning M.R. had adopted the "legitimate expectation"principle. Wilson J. concluded that:

On the authority of Birdi's case Dr Premdas had the right orinterest or legitimate expectation, at the time of the revocation andsubsequent review thereof, of being allowed to stay, and he wasentitled to make representations, to be given reasons, and beheard.38

32 Premdas case, 56.33 There is very little basis upon which the politicians or the lawyers who were

involved could have known that the Court of Appeal in Birdi had discussed theprinciples of natural justice. The only law report cited by Wilson J. in Premdas isthe 9 May 1975 part of volume 119 of the Solicitors' Journal, which, at theearliest, would have arrived in Papua New Guinea towards the end of theConstituent Assembly debate on the Constitution Bill. Moreover, this reportindicates only that Lord Denning M.R. referred in some way to the legitimateexpectation principle, and while it indicates too that Stephenson and GeoffreyLane L.JJ. delivered concurring judgments, it does not record that these LordsJustice made any reference to the principles upon which natural justice applied.Birdi's case was also reported in The Times newspaper on 12 February 1975(which would have been known to at least Prentice C.J., who referred to acase-note on Birdi in (1976) 92 Law Quarterly Review 33, 34 which refers toThe Times report), but that report is no fuller than that in the Solicitors' Journal.However, Wilson J. referred to parts of the judgments of both Lord Denning M.R.and Geoffrey Lane L.J. which do not appear in either of these truncated reportsof Birdi's case, and it must be presumed that the Court had before it some otherreport of the Court of Appeal's judgment; Prentice C.J. and Saldanha J. alsoreferred to passages from Birdi not printed in the two available reports. Finally, itmay be noted that Wade, Administrative Law (4th ed., 1977) 397, 423 refers toBirdi's case only on the issue of the effect of the European Convention on Englishdomestic law, and that he regards the case as unreported. In the light of all this,it is difficult to regard the case as "authoritative".

34 Premdas case, 56.35 [1969] 2 Ch. 149, 170.36 [1964] A.C. 40.37 [1969] 2 Ch. 149, 171. No citation is given to Geoffrey Lane L.J.'s judgment.38 Premdas case, 57-58.


However, although he regarded the question as having been settled byBirdi, Wilson J. went on to refer to two recent cases of the High Courtof Australia, and another recent decision of the English Court of Appeal,although he did acknowledge that: "In so far as there is any differencebetween the Australian decisions and the English decisions, this Courtshould prefer the English decision."39

The Australian cases were Salemi4G and Ratu,41 and Wilson J. foundthat "a majority of the High Court ... have approved of Lord Denning'sdoctrine of the 'legitimate expectation' ",42 a conclusion based on hisview that Stephen and Jacobs JJ. in Salemi, and Mason J. in Ratu, hadapproved of the doctrine, and that only Barwick C.J. had disapproved.The Court of Appeal decision was R. v. Secretary of State for the HomeDepartment; ex parte Hosenball.43 Hosenball, a journalist, was orderedto be deported before his entry permit expired on the ground that hehad obtained for publication information harmful to the security of theUnited Kingdom and prejudicial to the safety of servants of the Crown.The Court held that the rules of natural justice did not apply in this"national security" situation," and that the Secretary of State was notrequired to disclose the sources of his information. Although he madeno reference to the legitimate expectation doctrine, Lord Denning didcite Schmidt and Birdi,45 and Cumming-Bruce L.J. agreed with LordDenning M.R. It is reasonable to conclude as did Wilson J., that theCourt "was in no doubt that there was some hope for the operation ofnatural justice in deportation matters",46 but to derive also from theagreement of Cumming-Bruce L.J. with Lord Denning that the LordJustice had approved of the legitimate expectation41 doctrine seemswith respect, rather tenuous.

Wilson J. concluded his discussion of the law by answering the argument of Saldanha J. that the statements of the doctrine of legitimateexpectation were obiter dicta. Wilson J. argued that the statements werenot casual expressions of opinion, and that they "really formed an integralpart of the train of reasoning directed to the real question that wasdecided".48 He also relied on the fact that the courts in Birdi, Hosenball,Salemi and Ratu had not noticed that the doctrine was obiter dicta, and

39 See Constitution, Schedule 2.2(1). Premdas case, 58.40 Salemi v. MacKellar (No.2) (1977) 137 C.L.R. 396.41 R. v. MacKellar; ex parte Ratu (1977) 137 C.L.R. 461.42 Premdas case, 65.43 [1977] 3 All B.R. 452.44 Id. 457 per Lord Denning M.R., 461 per Geoffrey Lane L.J., 465 per Cumming-

Bruce L.J.45 Id. 460.46 Premdas case, 64.47Id.65.48 Id. 64, citing Richard West and Partners (Inverness) Ltd v. Dick [1969] 1 All

B.R. 289, 292 per Megarry J., Slack v. Leeds Industrial Co-operative Society Ltd[1923] 1 Ch. 431, 451 per Lord Sterndale M.R., and Cornelius v. Phillips [1918]A.C. 199, 211 per Lord Haldane L.e.


countered Saldanha J. by arguing that the statements of law in thosecases relied on by Saldanha J. to establish that natural justice did notapply to aliens were obiter dicta so far as their application to a personin the position of Premdas was concerned.

While the comments of Wilson J. on obiter dicta might be accepted, itis difficult to agree with his conclusion that he had cited an "impressivebody of authority as to what the common law and equity in 1975 hadto say about the application of the principles of natural justice in asituation such as the present".49' His Honour also refused to regard thisas a case where national security was relevant,50 illustrating how findingsof fact can determine the applicable rule.

Although he did not examine the issue at any length, Wilson J.indicated that there were a number of ways in which the rules of naturaljustice had not been observed by the Committee of Review:

In that [the proceedings] were not held in public, in that Dr Premdaswas excluded from the hearing, in that the Committee of Review ...being constituted of three other Ministers, was biased in that itmight reasonably be apprehended or suspected by fair-mindedpersons that the Committee might not resolve the question beforeit with a fair and unprejudiced mind....51

Wilson J. also found that Dr Premdas "was entitled to make representations, to be given reasons, and be heard".52 On the ground that theCommittee was biassed, Wilson J. would appear to be clearly wrong.Section 7(IC) of the Migration Act 1963 (P.N.G.) requires that theCommittee be constituted by three Ministers, and therefore the doctrineof necessity overrides the rule of bias.53 In other respects too his Honour'sviews on what is required by natural justice appear to be in excess ofthat which would be required in England or in Australia. For example,Stephen J. held that in the context of Salemi:

While the prohibited immigrant must be placed in a position toknow of and correct any misapprehensions on the part of the Minister"chapter and verse" need not be quoted to him by the Minister nor,in general, need the sources of the Minister's information bedisclosed if to do so would prejudice security or otherwise becontrary to the national interest.54

Stephen J. found that the legislative scheme in Salemi precluded an oralhearing for deportees, but Wilson J. made no examination of theMigration Act 1963 (P.N.G.) in order to determine that issue. Stephen J.

49Id. 65. The status of Birdi has been commented on supra n. 33, and the onlysignificant pre-1975 authority is the judgment of Lord Denning M.R. in Schmidt.

50Id. 47, although Wilson J. acknowledged that the letter from the PrimeMinister's Office to Dr Premdas did state that the Government considered hisactivities to be "detrimental to the good government of his country".

51Id. 50-51.52Id. 58.53 De Smith, Ope cit. 243-244.54 (1977) 14 A.L.R. 1, 39.


was also quite clear that the common law did not require the giving ofreasons.50 In Premdas the applicant was permitted to make writtenrepresentations and was provided with a general statement of the casealleged against him, and it is submitted that the critical natural justiceissue was whether that statement was sufficient. Wilson J. did not viewthis as a case where national security was given as a reason for therevocation of the permit, but this is not the only ground upon which thecourts permit the withholding of information, and that the matterconcerned transactions between Ministers and within a Department,involving questions of access to' classified material, should have had abearing on this issue.56 The case-law does not indicate with any precisionthe answer, but it is not as clear as Wilson J. made it to be.

THE ROONEY CASE

The temporary restraining order by Pritchard J. in the Premdas casewas made on 4 July 1979. On 11 July the then Minister for Justice,Mrs Nahau Rooney, wrote a letter57 to the Chief Justice which beganwith an acknowledgment of the independence of the National JudicialSystem under section 157 of the Constitution. The Minister then madeit clear that she was referring to "the recent case the State v. Dr R.Premdas", which she described as "a case where a narrow and literalinterpretation of the written law was used". She said that the Ministersinvolved in that matter had acted because they believed that "the actionsof Dr Premdas may have been detrimental to the sovereignty of theNation", and continued:

It is obvious that no one has deprived Dr Premdas of his basichuman rights or freedom.The important principle at stake is not simply whether Dr Premdashas done any wrong to warrant deportation nor whether the procedures employed are correct but whether the Government ofPapua New Guinea has the right and power to decide which noncitizens are welcome here and which non-citizens are not welcome.It is up to the Elected Government and no one else to decide whatcriteria are used to deport Foreigners. (emphasis added)

The letter concluded:

I believe the principle of being a Papua New Guinean is basic andtranscends any semantic or legalistic argument.In failing to recognize this principle the court has jeapodized [sic]its independence and neutrality by intervening in a matter which isobviously the sole prerogative of the Government.However I ask all members of the Judiciary to make a greatereffort to use their discretion effectively to develop the National

551d.40.56 De Smith, Ope cit. 166-167.57 Reproduced in the judgment of Raine Deputy C.l. in the Rooney case, 2-3;

statements of fact are taken from this judgment unless otherwise indicat~d.


legal system in the context of a proud and growing Nationalconsciousness.

This letter was sent by the Minister to some 43 other persons, includingMinisters, Opposition leaders, and the permanent heads of many Departments. This letter formed the basis of the first count of a charge ofcontempt of the Supreme Court brought against Mrs Rooney.

This letter evoked from the Chief Justice on 13 July a long responseD8

in which he said that he and his brother Justices "were affronted by whatyou have written, which could well constitute a serious contempt ofcourt". However, he stated that they would "not accept directions fromor pressure by the Minister for Justice or anyone else", and that theywould "not be deterred from carrying out to the best of our abilities therole given us by the Constitution". In the penultimate paragraph, theChief Justice said that it would "be necessary for the Supreme Court tomake public your impropriety", but in the final paragraph he requestedthat the Minister withdraw her letter and apologise to the National andSupreme Courts "with a distribution identical to that your letter hasbeen given". On 17 July Mrs Rooney wrote what was described byRaine Deputy C.J. in the Rooney case as a "more conciliatory"59 letter,but she did not apparently circulate it in the same manner as her earlierletter. She made attempts to discuss the matter with the Chief Justice,but the latter declined because of "the legal situation". The next eventsof significance to the Rooney case occurred on 20 July.

On that day, the Chief Justice revealed the existence of the correspondence and in some manner the press obtained copies of the letters, forthey were published in the Post-Courier, the country's only dailynewspaper, on the following Monday, 23 July.60 In a statement in Court,the Chief Justice said that he considered this step necessary "in fairnessto the parties in a pending case" in order that justice could be seen tobe done, and "so that the good name of the Courts may be defended".He referred to the Government's failure to support the Court, and onbehalf of the judges invited the Government to act in defence of theConstitution and the CourtS.61

The Chief Justice's actions angered the Minister, who late thatafternoon spoke to a reporter from the National Broadcasting Commis-

18Id.4-6.09Id.21.60 A press report of this occasion says only that the Chief Justice made his

statement in "a crowded Supreme Court sitting", and that Pritchard and Kearney JJ.sat with the Chief Justice: Post-Courier, 23 July 1979. The publication by thisnewspaper of the Minister's letter of 11 July did not lead to any prosecution ofthe editor or journalist responsible, even though, as Wilson J. noted, the newspaperwas "directly responsible for the wide publication of the statements": Rooneycase, S. Wilson J.'s remark was also directed at the publication by the NationalBroadcasting Commission of the statement made by Mrs Rooney to a reporter.(It is to be noted that the pages of Wilson J.'s judgment in Rooney are separatelynumbered.)

61 Rooney case, 11.


sion, and an item on the 7.00 p.m. news reported that Mrs Rooney hadsaid that she had no confidence in the judges. Later that evening, areporter from the Post-Courier approached Mrs Rooney, and one resultof a conversation between them was that the Monday, 23 July edition ofthe newspaper carried a report that: "Mrs Rooney on Friday said thatshe would not retract what she had said, because the judiciary is nolonger doing justice".62 These reports formed the basis of the secondand third counts of contempt brought against Mrs Rooney. There was nodenial that these statements had been made, but the defence argued thatMrs Rooney had stipulated to the journalists that they were "off therecord" and not for publication.

The next week a political maelstrom broke. On the evening of 22 Julythe Deputy Prime Minister, speaking for the National Executive Council,supported Mrs Rooney in her dispute with the judiciarY,63 and at a pressconference on 23 July the Prime Minister reaffirmed the Government'ssupport.64 The Opposition leaders called for the Prime Minister'sresignation, and the Government was criticised by tertiary studentorganisations and some leading Papua New Guinean lawyers.65 Leadingfigures in the Opposition had attacked the Government in June after thedecision to deport Dr Premdas, and it was no surprise that on 1 Augustthe Leader of the Opposition, Mr Iambakey Okuk, brought a privateprosecution for contempt of court against Mrs Rooney.66 When theSupreme Court first heard this matter on 6 August, counsel for MrsRooney challenged Mr Okuk's standing to prosecute. Newspaper reportsindicate that the Public Prosecutor was in the courtroom, and that at onestage he obtained leave to speak and indicated that he could intervenein a criminal proceeding. Raine Deputy C.J. supported this view, andthe Prosecutor was told to "consider his position".67 This he did, and on8 August Mr Okuk's contempt proceedings was dismissed by consentand the Prosecutor undertook to prosecute Mrs Rooney.68 Mrs Rooneywas charged with the three counts of contempt of the Supreme Courtindicated supra.

A majority of four Justices (Raine Deputy C.J., Saldanha, Wilson andGreville-Smith JJ.) found Mrs Rooney guilty on all three counts, andsentenced her to eight months' imprisonment. Kearney J. dissented onthe first count relating to the letter of 11 July, but found the Ministerguilty on the second and third counts and would have imposed a fine of200 Kina69 on each of these counts. However, the views of Kearney J. on

62 Ibid.63 Post-Courier, 23 July 1979.64: Post-Courier, 24 July 1979.65 Ibid.66 Post-Courier, 2 August 1979.67 Post-Courier, 7 August 1979.68 Post-Courier, 9 August 1979.89 1 Kina equals approximately $1 Australian.


the criteria for assessing penalty were also clearly different from thoseof the majority.

The judgments in this case are concerned primarily with findings andanalysis of the facts and discussion of penalty, but a number of constitutional issues did arise, and it is the manner in which the justicesresolved those issues which is of major concern in this article.

(a) The law of contempt and section 46 of the Constitution

Section 160(2) of the Constitution provides that the Supreme Court"has the power to punish the offence against itself commonly known ascontempt of court", and it was reasonable for the Court in Rooney toassume as it did that the nature of this offence was to be determined byreference to the underlying law. There are two primary branches of theEnglish common law of criminal contempt: 70 first, the sub judice rule,that it is an offence to make statements or engage in conduct which iscalculated to prejudice a proceeding pending before a court, andsecondly, that it is an offence to make statements which scandalise ajudge or a court. These latter statements need not be made in the contextof a pending case, and a statement may be scandalous if it is abusive, orif it attacks the integrity of a judge or a court.

However, in some significant respects the law of contempt is unclear,and the settled principles often do not yield clear answers in particularsituations, so that disagreement as to their application between judgesinvolved in the same case (who in relation to contempt are the triers offact) is not uncommon.'ll Situations where the alleged contemptuousbehaviour is criticism of a judge or a court have often given rise tocontroversy, for in these cases "free speech" becomes an issue. Moreover, in these cases the judges are deciding a matter in which they havean interest. For both of these reasons, English judges have stressed thatthe power to commit for contempt should be used with great caution;'!and that the offence does not lie in offending the dignity of the judges,but rather in the risk created to the administration of justice.

In the United States of America, the freedom of speech clause in thefederal Constitution has been partly responsible for the growth of adoctrine which severely limits the scope of contempt where speech is thegravamen of the charge.'l3 The doctrine that a court may be scandalised

10 See generally Miller, Contempt of Court (1976).71 E.g. Attorney-General v. Times Newspapers Limited [1974] A.C. 273, 312 per

Lord Diplock, where his Lordship indicates that he differed from other Lords. It isdifficult to see how findings can be made beyond reasonable doubt where there isdisagreement between the judges.

'72 E.g. Ambard v. Attorney-General of Trinidad and Tobago [1936] A.C. 322.The European Court on Human Rights, basing its opinion on the freedom ofexpression clause of the European Convention, has disagreed with the House ofLords opinion in The Times case: (1979) 123 Solicitors' Journal 416-417.

73 See generally Dobbs, "Contempt of Court: A Survey" (1971) S6 Cornell LawReview 183.


by statements not made with reference to a pending case has beenpractically abolished. Comment on pending cases will be contempt only ifthe comment presents a "clear and present danger" to the trial, and theSupreme Court and the State courts have applied this general testnarrowly. Disrespect for the judiciary will not constitute contempt, andin one case the Supreme Court warned that "an enforced silence,however limited, solely in the name of preserving the dignity of thebench, would probably engender resentment, suspicion, and contemptmuch more than it would enhance respect".74 The Court has also warned"one should not indulge an assumption 'against the independence ofjudicial action' in determining the existence of a clear and presentdanger . . .".75

Section 46( 1) of the Constitution provides that "[e]very person hasthe right to freedom of expression and publication", although thisguarantee may be qualified by a law passed under section 38 (the generalqualification). It was not surprising then that counsel for Mrs Rooneyargued that the law of contempt in Papua New Guinea should becircumscribed so as to protect freedom of expression, and the UnitedStates law was cited to the Court.

Saldanha J. considered this argument more fully than the otherJustices, and dismissed it in two ways. Firstly, his Honour pointed outthat the narrative in the C.P.C. report concerning its recommendationon what became section 46 made no reference to the law of the UnitedStates, whereas in its discussion of section 37 (protection of law) theC.P.C. had observed that this was the equivalent of the United States"due process" clause.76 Saldanha J. therefore appears to suggest that theC.P.C. did not intend that the United States law on freedom of expressionshould be relevant. With respect, it is tenuous to apply an expressiounius line of interpretation to a narrative, and in any event the C.P.C.did cite the Bill of Rights as a general source of inspiration.7'7 Furthermore, even if the United States cases are dismissed, the question of thescope of the protection in section 46 remains.

Secondly, Saldanha J. pointed to Schedule 2.2(1), (which adopts theEnglish common law subject to qualifications), and stated simply thathe saw

nothing in the English law on "contempt" that is inconsistent witha Constitutional law or statute or custom and nothing that makes itinapplicable or inappropriate to the circumstances of the countryor the present time.78

74 Bridges v. California (1941) 314 U.S. 252, 271.75 Dobbs, Ope cit. 210, quoting from Pennekamp v. Florida (1946) 328 U.S.

331, 349.76 Rooney case, 25.'11 Final Report of the Constitutional Planning Committee (1974) 5/1/1.'18 Rooney case, 25.


Saldanha J. concluded therefore that the English law of contempt wasthe applicable law, and cited passages from the fourth edition ofHalsbury's Laws of England79 as the governing principles.

Wilson J. also considered the effect of section 46, and he agreed withcounsel that it "quite obviously limits the field of operation of the lawof contempt", and held that "the legitimate exercise of the right offreedom of expression" could not be contempt, but found that MrsRooney "went much further" than this.so Wilson J. added that section 46"is qualified by the restrictions which the law of contempt as expressedin the Constitution itself imposes", and concluded that it does notafford "any protection against contempt of court as found here".81 It isnot clear what are these restrictions in the Constitution, but it is possiblethat Wilson J. agreed with Saldanha J. that section 46 was subject tothe reception of the English common law, although another view is thatthe law of contempt stood in a special position because of the referenceto it in section 160(2).

However, it is submitted that either view inverts the relative significance of section 46 and either or both of Schedule 2.2 (1) and section160(2). Section 46 is not subject to the Constitution, whereas Schedule2.2 (1) makes clear that English common law must give way to it in caseof conflict. So far as section 160(2) is concerned, the content of the lawof contempt is a matter of underlying law, and is in no better positionthan any other branch of that body of law.

Raine Deputy C.J. (with whom Greville-Smith J. agreed) didrecognise that "freedom of expression and publication is preservedunder the Constitution, subject to certain exceptions and possibleexceptions", but did not elaborate on these exceptions.82 His Honourfound that of the cases cited to the Court, it was not necessary to gobeyond the 1973 decision of the House of Lords in Attorney-General v.Times Newspapers Ltd.83 Raine Deputy C.J. appears to have beeninfluenced by the fact that it was decided "immediately before Independence Day" (quoting Schedule 2.2 (1) ), and although he acknowledgedthat the Court was not bound to apply this case, he saw "no goodreason" why it should not be applied.84 This is the extent of his Honour'sreasoning on this issue.

Thus, the majority Justices in Rooney applied the English law ofcriminal contempt, and arguments that this law should be modifiedbecause of section 46 were specifically rejected. The dissenting Justice,Kearney J., also accepted the English law, although he found that in thelight of section 46 there should be no " 'technical' contempts in our law;

'19 Vol. 9, pp. 7, 8 'and 21.80 Rooney case, 15.81 Ibid.821d. 17.83 [1974] A.C. 273.M Rooney case, 18.


a publication is either a contempt and punishable, or not a contempt".85He therefore rejected an argument that publication to one person,without the intention that that person will publish the statement, canconstitute a contempt.

(b) Section 18(2)

A preliminary issue which was decided by an interlocutory judgmentwas whether the reference to the Supreme Court in the Premdas matterwas pending on 11 July when Mrs Rooney wrote to the Chief Justice.The question arose because the terms of the order of Pritchard J. in thePremdas case required the applicant "to take steps to set the matter downfor hearing in the Supreme Court".86 However, it was not until some timeon 20 July that Pritchard J. prepared a written reference to the SupremeCourt of the six questions that he saw arising from the applicationsbefore him.87

Raine Deputy C.J. (with whom Saldanha, Wilson and Greville-SmithJJ. agreed) said that he would assume that on 4 July Pritchard J."imagined that some separate application was to be made by Premdasto the Supreme Court on constitutional grounds".88 However, his Honourfound that this did not "matter a scrap", because Pritchard J. had takenthe view that an arguable constitutional point had been raised and"[t]hus by reason of s. 18 [of the Constitution], it was inevitable thatthe Supreme Court would become involved".89 He dismissed as "noanswer" an argument that the applicant may not have pursued thematter, and concluded that:

The Supreme Court simply had to become involved, the Constitutionenjoins us to, it is our very duty, we are the only ones who canperform that duty.oo

This last comment is incorrect, for by section 57 (1) the NationalCourt has a jurisdiction concurrent with that of the Supreme Court toenforce the Basic Rights provisions, and the only constitutional issuesin the Premdas case involved sections of the Constitution relating to theBasic Rights. This error weakens the reliance by Raine Deputy C.J. on R.v. Parke,91 in which it was held that there could be contempt of the(English) High Court of Justice although there had been no committalproceedings before a court of petty sessions, for in that case the prosecution

85Id.45.86 Premdas v. The Independent State of Papua New Guinea, unreported, 4 July

1979; Appendix "B" to the judgment of Kearney J. in the Rooney case (interlocutory judgment).

87 Rooney case (interlocutory judgment), 1 per Raine Deputy C.J., 10 perKearney J.

88Id. 2. Nevertheless his Honour found this assumption "hard to accept, for if itwas [the case] then certainly the judge changed his mind": ide 2-3. With respect, itwould seem clear that Pritchard J. did change his mind.

89Id. 3.90 Ibid.91 [1903] 2 K.B. 432.


in question must have come before the High Court.92 However, Packerv. Peacock,93 a decision of the High Court of Australia also cited byRaine Deputy C.J., suggests that a concurrent jurisdiction may beenough, and it may be said of the Premdas case that Pritchard J.contemplated that the matter would go to the Supreme Court.

Counsel for Mrs Rooney sought to compare section 18(2) of theConstitution and section 40A of the Judiciary Act 1903 (Cth). Section18(2) provides that:

where any question relating to the interpretation or application ofany provision of a Constitutional Law arises in any court ortribunal, other than the Supreme Court, the court or tribunal shall,unless the question is trivial, vexatious or irrelevant, refer thematter to the Supreme Court, and take whatever other action(including the adjournment of proceedings) is appropriate.

Section 40A governed the removal of inter se questions from StateSupreme Courts to the High Court of Australia, and it had the effectthat as soon as such a question arose in a State Supreme Court, "thecause shall be by virtue of this Act, and without any order of the HighCourt, removed to the High Court". No action on the part of the StateSupreme Court was necessary.94 Counsel's argument was that section18(2) did not automatically divest a court of jurisdiction, when aconstitutional issue was raised, and to make this point drew a comparisonwith section 40A, which did have this effect. Raine Deputy C.J. wasnot persuaded by this argument:

Had the terms of s. 40A occurred in the original Constitution here,and then been supplanted by a section like s. 18, then, on any"expressio unius" basis, Mr Priestley might have been on strongground, certainly on stronger ground. But s. 18 is in the Constitution of the Independent State of Papua New Guinea. S.40A isAustralian, and Australian only.95

Kearney J. dissented on this issue, finding that "the conclusion isirresistible" that Pritchard J. considered only the question of interimrelief in the National Court, and that there was no suggestion that hewas asked to refer any constitutional question to the Supreme Court.96

Thus, he concluded that no question was referred by Pritchard J. on4 July, and that section 18(2) did not operate in a way similar tosection 40A:

rather [section 18(2)] requires prior consideration by the judgeand the determination of the nature of the question in issue-

82 Id. 437. This aspect of R. v. Parke was stressed by the High Court of Australiain Packer v. Peacock (1912) 13 C.L.R. 577, 583.

93 (1912) 13 C.L.R. 577, 586.94 See generally Lane, Ope cit. 570-575.95 Rooney case (interlocutory judgment), 4.96 Id. 10.


whether it is trivial, vexatious or irrelevant, before a reference canbe instituted.91

Because of this finding, Kearney J. found that Mrs Rooney had no caseto answer on the first charge.

(c) The institution of proceedings for contempt

The most recent English textbook on the law of contempt states thelaw on standing to prosecute for criminal contempt in very wide terms.98

While such proceedings are normally brought by the Attorney-General,they may also be instituted by a party to the proceedings affected, amember of the public who has no connection with the proceedings, oron the initiative of the judge or court concerned. However, English lawmay have been affected by The Times case, for it is possible to read thejudgments, especially those of Lords Reid and Cross, as suggesting thatonly a person affected by the alleged contempt, or the Attorney-General,may institute proceedings.99 In the Rooney case the initial prosecutionwas brought by Mr Iambakey Okuk, the Leader of the Opposition, whowas not a party to the Premdas proceedings. This issue became mootwhen Mr Okuk withdrew in favour of the Public Prosecutor, who might,in so far as prosecutions are concerned, be seen to stand in the role ofan Attorney-Genera1.1 Nevertheless, Greville-Smith J. did consider thisissue.

Greville-Smith J. found that Mr Okuk did have standing, as a privatecitizen, to institute proceedings for contempt of court against Mrs Rooney.Citing English and Australian authorities,2 he relied on a generalproposition that every one has the power to test the legality of actionby a criminal prosecution, and citing two Australian High Court cases,sthat this extends to a committal for criminal contempt. This law, heargued, was part of the common law received under Schedule 2.2.Section 177 of the Constitution, which vests the prosecution function inthe Public Prosecutor, refers to the "governmental prosecution function"only, and does not impinge upon the common law power of citizens.He acknowledged that, by virtue of section 176(3 ) (a), the Prosecutorcannot be directed in the exercise of his functions, but nevertheless, in"fundamental matters at least, the people of Papua New Guinea should

97ld. 12.98 Miller, Ope cit. 40-41.99 [1974] A.C. 273, 293-294 per Lord Reid, 326 per Lord Cross.1 In England, the function is vested in the Attorney-General, and not in the

Director of Public Prosecutions. However, the Constitution should probably betaken to have vested this function in the Public Prosecutor, s. 177 (1) (a).

2 Stephen, History of the Criminal Law of England (1883) i, 496; Cole v.Coulton (1860) 24 J.P. 596; Duchesne v. Finch (1912) 28 T.L.R. 440; Snodgrassv. Topping (1952) 116 J.P. 332; Greenwood v. Leary [1919] V.L.R. 114; andSankey v. Whitlam (1978) 21 A.L.R. 505.

3 R. v. Fletcher; ex parte Kisch (1935) 52 C.L.R. 248, 258 per Evatt J.; R. v.Dunbabin; ex parte Williams (1935) 53 C.L.R. 434, 445 per Rich J.


have more than one string to their bow".4 These comments are clearlyobiter dicta, and the Court heard no argument on the subject. However,Kearney J. agreed with those observations,S and Wilson J. was inclinedto express general agreement with Greville-Smith J.6

Greville-Smith J. did acknowledge that the common law principlereceived under Schedule 2.2 had been modified by statute, but he didnot consider the larger question of the appropriateness of this doctrine toPapua New Guinea. Section 177 ( 1) (a) of the Constitution provides thatit is the Prosecutor's function "to control the exercise and performanceof the prosecution function (including appeals and the refusal toinitiate and the discontinuance of prosecutions) before the SupremeCourt ...". This follows the C.P.C. recommendation, and the C.P.C.commented also that in the exercise of this function, the Prosecutor had

a duty ... to ascertain all the relevant facts, including the effectwhich a particular prosecution, successful or unsuccessful as thecase may be, would have upon public morale and order. He shouldalso take into account any other considerations of public policy.1

Section 177 ( 1) (a) should be read against the background of thesecomments, which are particularly apposite to contempt proceedings ofthe kind involved in Premdas, where a prosecution will serve to focuspublic attention on criticism of the judiciary. In The Times case, LordReid stated that the Attorney-General might bring a prosecution forcontempt if the party aggrieved (in this case, Dr Premdas), failed toprosecute, but that it was "entirely for him [the Attorney-General] tojudge whether it is in the public interest that he should act".8 It issubmitted that the C.P.C.'s comments should have caused GrevilleSmith J. to have considered this issue in more depth and that, even as amatter of English common law, the situation is not as clear as his Honourmaintained.

(d ) Fact finding

In relation to each of the three counts of contempt there was disputeas to the facts, or the inferences to be drawn from the facts, upon whichthe law could be applied. In relation to the letter of 11 July, Kearney J.dissented from the view of the majority that it was directed at theSupreme Court. His Honour also took a different view of the extent towhich this letter could be construed by reference to letters and statements of the Minister subsequent to 11 July. In relation to the statementsto the media, the defence asserted vigorously that the Minister did notintend that her remarks be published, and although the evidence asrecorded in the judgments suggests that there was at least a reasonable

4 Rooney case, 50.SId. 38.6Id. 19.'1 Final Report of the Constitutional Planning Committee (1974) 8/10.s [1974] A.C. 273, 294.


doubt as to her intention, all of the Justices found against her on thisissue.

The burden of this article is to demonstrate that the judiciary, by theirchoice of technique of interpretation, have a discretion as to the choiceof the rule to be applied. In addition to "rule discretion", these judgments also illustrate Jerome Frank's observation that the trier of facthas a "fact discretion", that is, that there is a discretion to choose oneversion of the facts rather than another, and that this discretion willdetermine the rule to be applied.9

(e) PenaltyWilson J., who delivered the leading judgment on penalty, concluded

his analysis by saying that:Assessing the Minister's conduct in the light of Papua New Guinea'sdevelopment as a nation, taking account of the experience of otherthird world nations and paying particular attention to the need tosafeguard the future of the rule of law in this country, the conclusionis reached that the Minister should be imprisoned with light labourfor eight months.10

Kearney J. demonstrated by reference to a number of English andCommonwealth cases that the penalty of eight months' imprisonmentimposed by the majority was well in excess of what could have beenexpected were these cases followed. Although they made some attemptto justify this penalty by reference to other cases, in this respect themajority stressed the uniqueness of the decision on penalty and soughtjustification in Papua New Guinean conditions.

Wilson J. cited the first National Goal-that of Integral HumanDevelopment-and found that the independence of the judiciary was"the key to freedom under the law".11 Wilson J. was influenced by whathe saw as Mrs Rooney's threat to the rule of law and the independenceof the judiciary. Saldanha J. adopted the principles of Wilson J. forsentencing, and was particularly concerned that the Minister and theGovernment had failed to defend the Constitution as required by theBasic Social Obligations.12 Thus, these two Justices, who in matters ofinterpretation of the Constitution had shunned the Preamble, resortedto it as part of their justification on the issue of penalty.

9 Frank, Courts on Trial (1949) 57. "The uniformity and stability which therules may seem to supply are therefore often illusory, chimerical. No rule can beproof against the subjectivity inherent in fact-finding. Ordinarily the human elementin judging cannot be escaped by resort to legal rules. In the last analysis, the legalrights of any man-to his property, to his means of earning a living, or not to bejailed or hanged when innocent of crime-if that man's rights become involved ina law-suit, usually depend on that human element. Don't let anyone persuade youto believe otherwise, to believe that, by any system of precedents or by legislation,your ordinarily can, when you go to court, get away from the reactions of somefallible human beings, if the facts are in dispute": 328-329.

10 Rooney case, 25.Illd. 1.121d. 36.


COMMENTARY

The reasoning in these cases demonstrates the contrast drawn in theintroduction between the absolutist and purposive modes of interpretation.The absolutist mode

This mode of interpretation may, in the first place, be manifested byrecourse to the orthodox rules of statutory interpretation, accompaniedusually by a rejection of the applicability of sections 24 and 25 of theConstitution. In cases where the orthodox rules do not yield a clearanswer, or to buttress a result reached where they do, there may,secondly, be a resort to the principles or rules of the English commonlaw to supply an interpretation, and/or, thirdly, to precedents from otherjurisdictions. All of the Justices in the Premdas and Rooney cases resortedto one or more of these ways of interpretation, but the absolutist approachwas applied most consistently by Saldanha and Wilson JJ.

(a) Orthodox interpretation

Wilson J. began his consideration of the natural justice issue inPremdas with a comprehensive statement of his approach to interpretation:

In order to find the answer to this question one needs to interpretthe provisions of the Constitution itself. For the purpose of theinterpretation of the Constitution the provisions of Schedule 1(Rules for Shortening and Interpretation of the ConstitutionalLaws) apply and, subject to that Schedule, the underlying lawapplies (see s. 8 of the Constitution). In interpreting the meaningof the language used in the Constitution it is necessary to read theConstitution, being a Constitutional Law in itself, as a whole (seeSch. 1.5 (1) of the Constitution) and to give to all provisionsthereof and all words, expressions and propositions therein "theirfair and liberal meaning" (see Sch. 1.5(2) of the Constitution).As there can be no doubt as to the interpretation of the provisionsto which reference will be made, (Le. this is not a "case of doubt"),I find it unnecessary (indeed I think it inappropriate) to use thepreamble to the Constitution and, in particular, the National Goalsand Directive Principles "as an aid to interpretation" and, in anyevent, 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 berules of law that are "applicable and appropriate to the circumstances" of this country, it is not part of this Court's duty to haveparticular regard to the National Goals and Directive Principles andthe Basic Social Obligations (see Sch. 2.3 (1) (a) ), although, asI have stated, the Preamble forms part of the Constitution. As, onthe authorities and having regard to the Constitution itself, therecan be no doubt as to the interpretation or application of any ofthe 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 PlanningCommittee dated 13th August 1974 and presented to the preIndependence House of Assembly on 16th August 1974 as an "aidto interpretation" (see s. 24 of the Constitution) .13

Wilson J. considered only the natural justice issue in any detail, but heagreed with Saldanha J. on the other issues presented in Premdas.Saldanha J. concluded his judgment with the comment that:

Sch. 1.3 of the Constitution provides that the Preamble to theConstitution may be used as an aid to interpretation in cases ofdoubt. As there was no doubt in my mind there was no need forme to use the Preamble in this way. Similarly, as I was able tointerpret the various provisions of the Constitution by giving wordstheir plain and ordinary meaning it was not necessary to use thereport of the Constitutional Planning Committee as an aid tointerpretation as provided for by s. 24.14

The means by which their Honours were able to avoid the purposiveinterpretation provisions of the Constitution are reasonably clear.Section 24 can be avoided by a finding that there is no doubt as to themeaning of the Constitution, and section 25 can be avoided in the sameway. Wilson J. appears to further relegate the significance of section 25by a view that Schedule 1.3 is the basic rule governing resort to thePreamble (which, of course, includes the National Goals), and thatSchedule 1.3 is subject to the rest of the Constitution, including, itseems, the orthodox rules for its interpretation.

However, there are only a few instances in these cases where theorthodox rules provided, by themselves, an answer. In Premdas, all ofthe Justices resolved the issues concerning sections 42 and 48 by astraightforward textual analysis, and although their views are unexceptional, there could, in respect of section 48, have been reference to theC.P.C. report. The effect of section 155 (3) on the privative clause inthe Migration Act 1963 (P.N.G.) was also resolved without reference tosources other than the text. The most explicit application of theorthodox rules was by Prentice C.J. in relation to section 41, in asituation where there was some ambiguity and where the C.P.C.'s viewscould have been incorporated in an interpretation of the section.

(b) English common law

The clearest examples of resort to English common law were inrespect of the natural justice issue in Premdas and the law of contemptin Rooney, and in view of sections 59 and 160 reference to the underlying law was necessary. However, the common law was used in lessobvious contexts too. In Premdas, Prentice C.J. and Andrew J. read thephrase "civil right or obligation" in section 37 (11) partly by reference

13 Premdas case. 51.141d.44.


to English cases which hold that an alien has no right of residence, andPrentice C.J. and Saldanha J. determined a test for the application ofsection 41 by reference to leading English cases on excess of discretionarypowers. In Rooney, Greville-Smith J., with some support, was willing topermit private prosecutions for criminal contempt by disinterestedpersons by reference to English and Australian cases. This resort toEnglish common law is a striking feature of these cases, and in view ofthe C.P.C.'s hope for a purposive interpretation of the autochthonousConstitution, and the distinction drawn in the Constitution between thecommon law and the underlying law, the Justices' approach needs to beexamined closely.

Interpretation of the Constitution by reference to the underlying lawis required in relation to sections 59 (natural justice) and 160 (contemptof court). Section 8 moreover indicates that the underlying law maysupply rules for the interpretation of the Constitution. More generally,it can be argued that the meaning of concepts employed in the Constitution should harmonise with those employed in the underlying law ifthey are directed to the same subject matter. However, there are objections to the use of English common law as a source of the underlyinglaw for these purposes.

In the first place, Schedule 2.2 (1) provides explicitly that the commonlaw should not be applied if it is inconsistent with the Constitution, aprinciple that in any event follows from the supremacy of the Constitutionexpressed in section 11. Secondly, Schedule 2.3 (1) (b) provides thatwhen formulating a rule of the underlying law, a court shall have regardto the Basic Rights sections, and while this provision can apply wherethe common law is not in issue, it indicates too that the common law,which if applied is part of the underlying law, should likewise conformto the Basic Rights sections.ls Thus, there should be no presumptionthat the Constitution does not intend to alter the common law; on thecontrary, the Constitution should be given an interpretation withoutreference to the common law.16

But it is clear from Premdas and Rooney that the Supreme Court willresort to the common law, sometimes with results that are inconsistentwith the Constitution. In the case of section 41, the result is clearly atodds with the intention of the C.P.C. and with the structure of the BasicRights sections. In the case of section 46 and the law of contempt, the

15 Schedule 2.3 (1) (d) also requires reference to "relevant decisions of the courtsof any country that in the opinion of the court has a legal system similar to that ofPapua New Guinea", but in view of the supremacy of the Constitution in thesystem of laws (s. 11), the direction in schedule 2.3 (1) (b) should take precedenceover that in schedule 2.3 (1) (d) .

1'6 In view of the C.P.C.'s comments on the pre-Independence system of government, supra p. 130, it could well be argued that there should be a presumptionagainst the English common law where interpretation of the Constitution isinvolved.


result is to preserve a branch of the common law which is recognised tolimit unduly freedom of speech.

In those cases where the Constitution refers to the underlying law,such as section 59, the Court merely adopted the English law withoutmaking a thorough examination of whether that law is appropriate tothe circumstances of the country. The Justices recognised that the applicability question should be asked, but dismissed it by assertions that theEnglish law does not require modification.

Moreover, in the judgments of Saldanha and Wilson JJ. in Premdasin relation to the natural justice issue, there was a static view of thecommon law. Both were at pains to determine, by use of the techniqueof precedent analysis, the rule that would have been applied by anEnglish court immediately prior to Independence. On the precise issuepresented, the situation of aliens in relation to deportation, the Englishcases had been decided by the Court of Appeal or lower courts, butboth Justices accepted that whatever rule emerged from those cases shouldbe accepted as the common law of England. (That the Justices came toopposite conclusions demonstrates that the techniques of precedentanalysis also give room for choice.) There are two minor objections tothis approach: first, that it is odd that a Papua New Guinean courtshould accept the Court of Appeal as a final authority on Englishcommon law, and some inquiry should have been made as to whetherHouse of Lords decisions on natural justice were relevant; and, secondly,that this approach fixes the content of English law at 16 September1975, and would preclude account being taken of developments afterthat date. A more fundamental objection is that English common law isnot simply a body of rules and principles waiting to be declared, butcomprises too the method by which the courts change those rules andprinciples over the course of time. Thus, when seeking to determine thecommon law, the Papua New Guinean courts should be prepared toemploy this "creative element"1'7 which is part of the "method and itsspirit"18 of the common law. That the Court of Appeal, or even theHouse of Lords, had adopted a particular rule at 16 September 1975should not foreclose the matter for the Papua New Guinean courts.

(c) Outside precedents

Schedule 2.12 permits reference to the decisions of courts in otherjurisdictions for their persuasive value, and section 39 (3) indicates thatdecisions of some courts, including those concerning the EuropeanConvention for the Protection of Human Rights and FundamentalFreedoms, may be employed to interpret the phrase "reasonably justifiable in a democratic society". However, despite resort to outsideauthorities, none of the Justices in Premdas or Rooney cited these

11 Skelton v. Collins (1966) 115 e.L.R. 94, 134 per Windeyer J.13Id. 135.


provisions. In Premdas all the Justices accepted Birdi as an authority onthe basis of similarity in wording between Article 6 (1) of the EuropeanConvention and section 37 (11 ). Some justification for this approachmight be found in section 39 (3), but it is nevertheless a mechanicalapproach which ignores the legal and social contexts of the two sets ofprovisions. Wilson J. considered the Australian High Court cases onnatural justice in relation to aliens, and although he acknowledged thatthe Australian Law should give way to the English, he was obviouslyinfluenced by his view of what the Australian cases decide. In Rooneythe most direct authority for the view of Greville-Smith J. on privateprosecutions in relation to contempt proceedings was two AustralianHigh Court cases, yet his Honour did not acknowledge any difficultyin this. The view of the majority in Rooney that section 18(2) shouldbe interpreted without a comparison to section 40A of the Judiciary Act1903 (Cth) is correct, but it should be noted that in relation to theeffect of section 10, which provides a rule for severance of unconstitutional laws, the Supreme Court has imported, without qualification,the decisions of the Australian High Court on this subject.19

The purposive modeThe judgment of Andrew J. in Premdas is a good illustration of how a

Justice may employ sections 24 and 25 of the Constitution. After settingout the facts and legal issues, Andrew J. stated that it is necessary torefer to the C.P.C. report as an aid to interpretation, in particular tounderstand their intention in relation to the entry and residence ofaliens. His Honour then made use of the report and of the Preamble tothe Constitution in the same manner as did Prentice C.J.20 BothPrentice C.J. and Andrew J. may have overstated the use which can bemade of the C.P.C. report and the Preamble in relation to the application of the Basic Rights sections to aliens. However the significance oftheir approach is that their Honours were prepared to adopt a modeof analysis based on sections 24 and 25. They also resorted to Englishcommon law, but as an adjunct rather than as a starting point for theiranalysis. However, Prentice C.J. did not pursue a purposive approachin his analysis of section 41, illustrating that choice of mode candetermine the result. On the other hand, Saldanha and Wilson JJ., whowere not disposed to this mode, did resort to the Preamble to justifytheir view on sentence in Rooney.

ConclusionThe modes of interpretation analysed in this article permit the judge

considerable scope as to choice of rule and result in relation to a

19 Rakatani Peter v. South Pacific Brewery Ltd [1976] P.N.G.L.R. 537, 546-547per Frost C.J., 560 per Kearney J. Prentice C.J. and Raine Deputy C.J. refused toadopt the Australian cases and followed a purposive mode of interpretation: ide556-557.

20 Premdas case, 73-76.


particular issue. Moreover, the same mode of interpretation may becapable of yielding two different results. In these cases the choice wasmostly of modes in the Anglo-Australian absolutist tradition, ratherthan purposive modes grounded in the intentions of the framers of theConstitution and the philosophy expressed in it. In sum, the choices thatwere made work against the concept of an autochthonous Constitution.The use of English common law and other outside authorities to influencethe construction of the Constitution deserves particular mention, forthese precedents bring with them the social philosophies that lie behindthe particular decisions.21 These philosophies are related to quite differentsocial contexts which could well be at variance with Papua New Guineancircumstances.

Why the Supreme Court has adopted the absolutist mode is difficultto answer. A simple explanation is that the Court comprises expatriatejudges who are reflecting their training and experience, as well as theirsocial values, in the task of interpretation. It might be argued too thatthey should not be expected to do any more than this. Some judgesmight be influenced by the argument that is made occasionally that the~egal system should be based on common law concepts in order toproduce a climate which foreign investors will find more hospitable.22

For whatever reason, it is clear that despite the Constitution's autochthonous beginnings, English common law and its techniques have showna remarkable resilience. Herein lies a general lesson for those who wouldseek to use judicially enforced public law as a vehicle for social reform.

21 See generally Griffiths, The Politics 0/ the Judiciary (1977).22 This line of argument is occasionally raised publicly: Bayne, "Legal Policy in

Papua New Guinea 1972-1977" in Ballard (ed.), Policy Making in a New State(forthcoming, 1980).

judicial method and the interpretation of ...a "purposive" mode, with the latter...

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