Papua New Guinea Law Reports - 1992
[1992] PNGLR 437
SC435
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA
V
GRAHAM ELLIS, CONSTITUTING THE POREPORENA FREEWAY COMMISSION OF INQUIRY
Waigani
Hinchliffe Konilio Andrew JJ
30 September 1992
1 October 1992
2 December 1992
18 December 1992
CONSTITUTIONAL LAW - Ombudsman Commission - Independence of Ombudsman Commission - Commission's powers of privilege and immunity from summons to give evidence and produce documents to Commission of Inquiry - Ombudsman cannot give evidence to National Court based on common law principles - Nature of privilege of the Ombudsman Commission - Commission's claim of power of privilege and immunity - Constitutional right - Proceedings of a judicial nature - Constitutional law applicable - Common law principles inapplicable.
OMBUDSMAN COMMISSION - Freedom from direction or control - Meaning of.
COMMISSION OF INQUIRY - Nature of proceedings.
Facts
The Ombudsman Commission appealed against a decision of the National Court which ordered that the Commission produce to the Court for inspection certain documents which the Commission claimed privilege. Mr Graham Ellis was appointed as Commissioner under the Commissions of Inquiry Act by the Prime Minister in August 1992 to inquire into and report on certain matters relating to the proposed Poreporena Freeway. On 1 September 1992, the Commissioner issued summons to the Chief Ombudsman under s 6 of the Commissions of Inquiry Act to appear before him and produce 2 categories of documents. The first category involved documents pertaining to the Poreporena Freeway and agreements between the partners of the project. The second category involved the annual returns received from 4 former MPs. The Chief Ombudsman provided only certain documents in the first category and none in the second category. The Chief Ombudsman claimed privilege in respect of those documents he did not provide to Commissioner Ellis.
Commissioner Ellis applied for judicial review to the National Court against the decision of the Chief Ombudsman on 10 September 1992. On the hearing of the application, the National Court ordered that the Chief Ombudsman file a further affidavit particularising the circumstances in which the documents the Ombudsman Commission withheld were obtained. The Chief Ombudsman refused to swear the affidavit on the grounds that he was not compelled to give evidence pursuant to s 35(2) of the Organic Law on the Ombudsman Commission. The National Court then ordered that the documents contained in the first category be produced to the Court for inspection to determine the nature of the privilege claimed. This order was made on the grounds of common law principles of "Crown privilege", involving the notions of "public policy" and "in the public interest". This order was, in fact, appealed against. (No orders for discovery of documents in the second category of documents were made by the National Court.)
Held
1.       The Constitution guarantees the freedom and independence of the Ombudsman Commission and s 219(7) directs that an Organic Law shall provide for the Commission's powers of privilege and immunity. That power is brought into operation by s 35(2) of the Organic Law on the Ombudsman Commission. Accordingly, s 35(2) of the Organic Law is intra vires the Constitution.
2.       Under s 35(2) of the Organic Law on the Ombudsman Commission, a member of the Commission shall not be called to give evidence in any court, or in any proceedings of a judicial nature in respect of anything coming to its knowledge in the exercise of its functions. He may be a competent witness, but he is not compellable.
3.       The extent of the Ombudsman Commission's powers of privilege and immunity is given by the Constitution and is to be determined by interpretation of the Constitution which overrides any of the statutory provisions or common law principles of "Crown privilege".
4.       The proceedings of the Commission of Inquiry were proceedings of a judicial nature for the purpose of s 35(2) of the Organic Law on the Ombudsman Commission.
5.       By s 217(5) of the Constitution, "the Ombudsman is not subject to direction or control by any person or authority". The combined effect of ss 217(5) and 219 of the Constitution and s 35(2) of the Organic Law is that the Ombudsman Commission has a constitutional right not to attend before a Commission of Inquiry and to hand over the documents that had been acquired in the exercise of its functions. Furthermore, the service of the summons by Commissioner Ellis on the Chief Ombudsman was not a "regulation" of the Ombudsman Commission's functions within the meaning of Sch 1.19(b) of the Constitution. Accordingly, the service of the summons on the Chief Ombudsman was unconstitutional by virtue of s 11(1) and s 217(5) of the Constitution.
6.       The common law principles of what is generally referred to as "Crown privilege", involving the notions of "public policy" and "in the public interest" (which the National Court had relied on to seek production of the documents for their inspection to determine the validity of the Ombudsman's claim of privilege), are inapplicable. The claim of power of privilege and immunity is based on the Constitution, and not the common law. By the terms of ss 217(5) and 219 of the Constitution and s 35 of the Organic Law on the Ombudsman Commission, the Ombudsman Commission has the constitutional right to withhold documents from a Commission of Inquiry.
7.       The "right" to withhold documents on the basis of the doctrine of public policy immunity is conceptually distinct from the right to withhold documents which arise by the operation of statutory secrecy provisions. The constitutional "right" to withhold documents as guaranteed by the Constitution in the special circumstances pertaining to the Ombudsman Commission is conceptually distinct from ordinary statutory secrecy provisions.
8.       The claim for the independence of a person or institution under a constitutional law does not affect the court's power of control or direction of that person or institution under Sch 1.19(a) of the Constitution. This provision only states the general principle that no person or institution can place himself or itself outside the law and not subject to the jurisdiction of the courts. Here, however, the specific effect of s 35(2) of the Organic Law was that the Ombudsman was not required to produce any evidence to the Commission of Inquiry and, accordingly, it should not have been required to give evidence to the National Court under common law principles to justify the stand which it had taken.
Cases Cited
Papua New Guinea cases cited
Raz v Matane [1986] PNGLR 38
Other cases cited
Conway v Rimmer [1968] AC 910
Coonan v Richardson [1947] QWN 19
Rowell v Pratt [1938] AC 101
Sankey v Whitlam (1978) 142 CLR.
Trapp v Mackie [1979] 1 All ER 489
Counsel
D Canning for the applicant
R Pato for the respondent
HINCHLIFFE KONILIO ANDREW JJ: This is an appeal from a decision of the National Court concerning the question of the extent of the nature and powers of the Ombudsman Commission to claim privilege of certain material ordered to be produced to the Court. In so far as the appeal is from an interlocutory decision, leave to appeal was granted to the appellant pursuant to s 14(3) of the Supreme Court Act.
The chronology of proceedings leading to this appeal are as follows: in August 1992, the Prime Minister, the Right Honourable Paias Wingti, appointed Mr Graham Ellis as a Commissioner under the Commissions of Inquiry Act and authorised him to inquire into and report on certain matters relating to the proposed Poreporena Freeway. On 1 September 1992, a summons issued by Commissioner Ellis under s 6 of the Commissions of Inquiry Act was served on the Ombudsman Commission. This summons was directed to the Chief Ombudsman and required him to appear before Commissioner Ellis and produce two categories of documents:
"1.      All documents (including but not limited to original documents, copy documents and draft documents) relating or referring to:
(a)      The proposed freeway from Port Moresby Seaport to Moresby Airport (otherwise known as the "Poreporena Freeway");
(b)      Any agreement or draft agreement relating to the said Poreporena Freeway involving any one or more of the following parties:
(i)       The Independent State of Papua New Guinea;
(ii)      Kinhill Kramer Pty Ltd;
(iii)     Curtain Brothers (Qld) Pty Ltd;
(iv)     Curtain Brothers Papua New Guinea Pty Ltd;
2.       All Annual Returns received from:
(a)      Rabbie Namaliu, MP
(b)      Paul Pora, MP
(c)      Anthony Temu, MP and
(d)      Lukas Waka, MP
relating to the period from 1 January, 1991, to-date or any portion of the period from 1 January, 1991, to-date including any covering letters, schedules or annexures thereto together with any correspondence in relation to any such Annual Return".
As a result of the summons, certain documents which fell within the category of documents referred to in Part 1 of the summons were produced. No documents were produced which fell within Part 2 of the Summons. The Chief Ombudsman advised that, in the exercise of its independent discretion and in view of its duty of confidentiality, there were some documents that it would not produce.
On 10 September 1992, Commissioner Ellis filed an application for leave to apply for judicial review of the Ombudsman Commission's decisions. He sought:
"(a)     An order in the nature of certiorari to quash the Ombudsman Commission's decision to withhold documents covered by Part 1 of the summons;
(b)      A declaration that the Ombudsman's decision to withhold the documents covered by Part 1 of the summons was null and void;
(c)      An order for the production of the annual statements referred to in Part 2 of the summons".
Leave to apply for judicial review was granted and, on the hearing of the application for judicial review, the National Court ordered that the Chief Ombudsman file a further affidavit particularising the circumstances in which the documents the Ombudsman Commission withheld were obtained.
The Ombudsman Commission submitted that the Chief Ombudsman could not be compelled to give the evidence required because of s 35(2) of the Organic Law on the Ombudsman Commission (hereinafter the Organic Law). This submission was rejected and the court ordered that the affidavit be produced. The Chief Ombudsman declined to swear the affidavit and the Court then ordered that the documents be produced to the Court for inspection. The Ombudsman Commission then filed an appeal under Order 10 of the Supreme Court Rules against the order to produce and those orders were later stayed pending the determination of the appeal to the Supreme Court.
The appellant contends:
1.       that the orders of the National Court contravened s 35(2) of the Organic Law;
2.       that the orders are wrong in law to the extent that they presuppose that a member of the Ombudsman Commission can be required to comply with a summons issued to him under the Commissions of Inquiry Act;
3.       that the Trial Judge misconceived the nature of the duty of secrecy and the immunities of members of the Ombudsman Commission and the privilege attached to documents in the possession of the Ombudsman Commission and the constitutional guarantee of its independence.
In our view, the National Court has effectively found that the Ombudsman Commission can only claim privilege over a limited range of documents and that the privilege has to be positively claimed before there is an entitlement to privilege. Further, it has found that the Court has a duty to protect statutory privilege and that this can only be determined by the Court seeing the documents and ultimately deciding that question. In other words, that the Ombudsman Commission cannot on its own volition determine that documents in its possession coming to it in the exercise of its functions are absolutely privileged.
In relation to the 4 annual statements required to be produced in Part 2 of the summons, the National Court made no order for discovery of these documents so that we are here only concerned with the material or documents relevant to Part 1 of the summons.
Sections 217(5), 217(7) and 219(7)(c) of the Constitution provide as follows:
"Section 217(5). In the performance of its functions under s 219 (functions of the Commission) the Commission is not subject to direction or control by any person or authority".
"Section 217(7). An Organic Law shall make further provision in respect of the appointment, powers, procedures and immunity of the Commission.
"Section 219(7). An Organic Law shall make provision in respect of the powers and procedures of the Commission, and in particular:
(a)      ...
(b)      ...
(c)      shall make provision to ensure the secrecy or confidentiality of secret or confidential information made available to the Commissioner or to a member of the Commission or of its staff."
The Organic Law gives effect to these provisions of immunity and privilege in particular by s 35(2) in these terms;
"Section 35.   Privilege
s35(2) A member of the Commission or an officer or employee of the Commission shall not be called to give evidence in any court, or in any proceedings of a judicial nature, in respect of anything coming to his knowledge in the exercise of his functions."
The Constitution guarantees the freedom and independence of the Ombudsman Commission and the Organic Law is directed by s 219(7) of the Constitution to execute the Commission's powers of privilege and immunity. That power is brought into operation particularly by s 35(2) of the Organic Law. Accordingly, s 35(2) is intra vires the Constitution. The section is clear and unambiguous in its terms in providing absolutely that a member of the Commission shall not be called to give evidence in any court, or in any proceedings of a judicial nature in respect of anything coming to its knowledge in the exercise of his functions.
In our judgment, the extent of the Ombudsman Commissioner's powers of privilege and immunity, as raised in this appeal, are to be determined by the operation of the Constitution, which overrides any of the statutory provisions or common law principles of what is generally referred to as "Crown privilege".
In our view, the National Court was in error in not giving full effect to these Constitutional powers. It found that the constitutional privilege afforded to the Commission was not self executing in the hands of the party that may be accorded the privilege. Whilst the Court did not find that information acquired by the Commission in the course of inquiries or proceedings is intended to be available upon summons in any other proceedings, it found that the courts have the jurisdiction to enquire and be satisfied and to ensure that the privilege claimed is valid. Reliance was placed on the common law principles of privilege on the grounds of public policy. It found that the Commissions of Inquiries Act and the Organic Law fall within this category, involving the proceedings of statutory bodies specifically protected by their empowering acts. In our view, the matters which were the concern of this dispute involve the unique nature of immunity and privilege given to the Ombudsman Commission by the Constitution and can only be determined by the interpretation of the Constitution.
The effect of s 35(2) of the Organic Law is that members, officers and employees of the Ombudsman Commission cannot be called to give evidence in any proceedings of a judicial nature in respect of anything coming to their knowledge in the exercise of these functions. Though they may be competent witnesses, they are not compellable. This raises the question of whether or not the proceedings of the Commission of Inquiry were of a judicial nature, for the essential issue in this appeal is whether the Ombudsman Commission was required to produce the documents requested to the Commission of Inquiry. But before turning to that point, we think it is necessary to consider the special constitutional position of the Ombudsman Commission in relation to immunity and privilege.
The report of the Constitutional Planning Committee (hereafter CPC) recommended the establishment of the Ombudsman Commission. In making its recommendations the CPC considered that the role of the Ombudsman Commission in Papua New Guinea should be greater than the generally perceived role of the Ombudsman as being available to assist ordinary people throughout the country who feel aggrieved by actions or omissions of the bureaucracy or of any institution of government. It also recommended the important responsibility of supervising and enforcing the Leadership Code and to have the necessary powers of investigation. It recommended that its independence should be deeply embodied in a sense of fairness and determination to do what is just in a given situation and that it should not be subject to the direction or control of any other person or authority. We consider that these recommendations, which are embodied in the Constitution, illustrate the special importance of the Ombudsman Commission and the intention of the Constitution to guarantee its freedom and independence and its general immunity from being called to give evidence in any court, or in any proceedings of a judicial nature.
There is no doubt that the proceedings of the Commission of Inquiry were proceedings of a judicial nature for the purposes of s 35(2) of the Organic Law. The House of Lords indicated in Trapp v Mackie [1979] 1 All ER 489 that there are a number of relevant considerations to be taken into account for the purpose of ascertaining whether a decision-making body, though not a court, has sufficiently similar attributes to a Court. Lord Diplock stated at p 492:
"So, to decide whether a tribunal acts in a manner similar to courts of justice ... one must consider first, under what authority the tribunal acts, secondly, the nature of the question into which it is its duty to inquire, thirdly, the procedure adopted by it in carrying out the inquiry and, fourthly, the legal consequences of the conclusion reached by the tribunal as a result of the inquiry."
The Commission of Inquiry is recognised by law and derives all its powers from an Act of the Parliament. The matters being enquired into have a character similar to the type of questions that are determined by a Court. Some of the other matters which show its judicial nature are:
-        the inquiry was held in public;
-        decisions as to what evidence was led were left to the contending parties;
-        witnesses could be compelled under legal sanction to give oral evidence and produce documents;
-        witnesses were entitled to the same privileges as in a Court of law;
-        oral evidence was given on oath and, if false, could attract criminal liability for the offence of perjury;
-        the normal procedures of examination-in-chief, cross-examination and re-examination applied;
-        the parties were entitled to be represented by legally qualified persons;
-        commissioners are under a duty to act judicially.
These are only some of the matters which show that the proceedings of the Commission were of a judicial nature, and this is not in dispute. 
SECTION 217(5) OF THE CONSTITUTION: FREEDOM FROM DIRECTION OR CONTROL
Section 217(5) of the Constitution states that, in the performance of its functions under s 219, "the Ombudsman is not subject to direction or control by any person or authority".
The effect of this constitutional guarantee is clarified by Sch 1.19 of the Constitution, which provides:
"Where a Constitutional Law provides that a person or institution is not subject to control or direction, or otherwise refers to the independence of a person or institution, that provision does not affect:
(a)      control or direction by a court; or
(b)      the regulation, by or under a Constitutional Law or an Act of the Parliament, of the exercise or performance of the powers, functions, duties or responsibilities of the person or institution; or
(c)      the exercise of jurisdiction under Division III.2 (leadership code), Subdivision VIII.1.B (the auditor-general), or Subdivision VIII.1.C (The public accounts committee).
And does not constitute an appropriation of, or authority to expend, funds."
The summons of the Commission of Inquiry was more than a request for documents. It directed the Chief Ombudsman to attend before the Commission of Inquiry and hand over documents that had been acquired by the Chief Ombudsman in the exercise of his functions as a member of the Ombudsman Commission. Consequently, the service of the summons by Commissioner Ellis on the Chief Ombudsman cannot be regarded as a mere regulation of the Ombudsman Commission's functions. It was not a regulation within the meaning of Sch 1.19(b) of the Constitution.
Accordingly, the service of the summons on the Chief Ombudsman in the circumstances of this case was unconstitutional by virtue of s 11(1) (The Constitution and the Organic Law as the Supreme Law of Papua New Guinea) and 217(5) of the Constitution.
The combined effect of ss 217(5) of the Constitution and s 35(2) of the Organic Law is that the Ombudsman Commission was not required to attend before the Commission of Inquiry and to hand over the documents that had been acquired in the exercise of its functions.
Other sections of the Organic Law, namely 20(1), 20(2) and 35(3) may also be relevant in imposing a strict duty of secrecy upon the Commission and creating a further guarantee of privilege, but in view of the finding that we have come to, we do not consider it necessary to discuss those provisions.
THE EFFECT OF THE NATIONAL COURT ORDER REQUIRING THE CHIEF OMBUDSMAN TO GIVE FURTHER EVIDENCE AND THE ORDER REQUIRING PRODUCTION OF THE DOCUMENTS TO THE COURT
The National Court ordered the Chief Ombudsman to swear an affidavit indicating to the Court the circumstances in which certain documents in the possession of the Ombudsman Commission had been obtained. Secondly, it ordered the Ombudsman Commission to produce the documents to the Court.
The Court found that the decision to allow or reject a claim to privilege is, and remains, the discretion of the Court and that it has the jurisdiction to enquire and be satisfied to ensure that the privilege claimed is valid. Reliance was placed on the common law principles of what is generally referred to as "Crown privilege", involving the notions of "public policy" and "in the public interest". As the Court stated:
"Thirdly there are documents which may be privileged on the grounds of public policy. These include documents relating to such matters as national defence and international policy. Also included are the proceedings of statutory bodies specifically protected by their empowering Acts. The Commissions of Inquiries Act and the Ombudsman's act fall within this class and it is these statutes that are the concern of this dispute.
The special exemption from giving evidence or producing documents is not merely a matter of practice and procedure but rules of substantive laws recognised both by the common law in creating the particular statutes. Indeed it is described in Halsbury (4th Ed Vol 12 at 186) as a principle of Constitutional law.
But it is fundamental that this privilege is not some special exemption from compliance with the laws of the country. The privilege is not self-executing in the hands of the party that may be accorded the privilege. All parties whether the State, the statutory body, or an individual are subject to the law and the jurisdiction of the Courts. It is the Courts that uphold the privilege."
We regard this as a correct statement of the law in so far as it relates to the common law principles of "Crown privilege" or public interest immunity. It is correct that if the Ombudsman Commission rested its assertion of privilege and that it was not required to produce documents solely on the ground that the documents were confidential and that it was not in the public interest that they be released, then it could be required to explain to the Court the circumstances in which the documents were obtained or otherwise justify its claim to privilege or even to produce the documents to the Court for inspection by the Court. But the Ombudsman Commission did not rely on the common law principle of public interest immunity (recognised in such cases as Conway v Rimmer [1968] AC 910 and Sankey v Whitlam (1978) 142 CLR 1 and Raz v Matane [1986] PNGLR 38.) It relied upon the Constitution.
In our view, the National Court was in error in applying common law principles and in failing to give full effect to the constitutional privilege afforded to the Ombudsman Commission. The matters which were the concern of this dispute involved the unique nature of immunity and privilege specifically given to the Ombudsman Commission by the Constitution and can only be determined by the application of the Constitution. As we have already found, the combined effect of ss 217(5) and 219 of the Constitution and s 35 of the Organic Law means that the Ombudsman Commission has the Constitutional right to withhold documents from a commission of inquiry. It has been recognised that the "right" to withhold documents on the basis of the doctrine of public interest immunity is conceptually distinct from the right to withhold documents which arise by the operation of statutory secrecy provisions; see for example Rowell v Pratt [1938] AC 101 and Coonan v Richardson [1947] QWN 19 and generally Halsbury's Laws 4th ed vol 13 para 93. The constitutional right to withhold documents as guaranteed by the Constitution, in the special circumstances pertaining to the Ombudsman Commission, is conceptually distinct from ordinary statutory secrecy provisions.
It is true that Sch 1.19(a) of the Constitution provides that, where a person or institution is not subject to control or direction or otherwise refers to the independence of a person or institution, that provision does not affect control or direction by a Court. But in our view this provision only states the general principle that no person or institution can place himself or itself outside the law and not subject to the jurisdiction of the Courts. Here, however, the specific effect of s 35(2) of the Organic Law was that the Ombudsman was not required to produce any evidence to the Commission of Inquiry and, accordingly, it should not then have been required to give evidence to the National Court under common law principles to justify the stand which it had taken.
It follows in our judgment that, for all of these reasons, the Ombudsman Commission was not required to give evidence before the National Court nor to produce the relevant documents.
Accordingly we allow the appeal.
Lawyer for the appellant: Ombudsman Commission
Lawyer for the respondent: Pato Lawyers