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Re Board of Inquiry Appointed Under S83(2) Public Service (Interim Arrangements) Act 1973; Re Certain Alleged Disciplinary Offences in Office by Philip Bouraga [1982] PGNC 16; N367 (5 May 1982)

Unreported National Court Decisions

N367

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
IN THE MATTER OF A BOARD OF INQUIRY APPOINTED UNDER THE PROVISIONS OF SECTION 83(2) OF THE PUBLIC SERVICE (INTERIM ARRANGEMENTS) ACT 1973
AND
IN THE MATTER OF CERTAIN ALLEGED DISCIPLINARY OFFENCES IN OFFICE BY MR PHILLIP BOURAGA
22 February 1982

Public Service (Interim Arrangements) Act 1973

as amended to date.

Report of the Board of Inquiry appointed to inquire into the truth of charges made against Mr Phillip Bouraga, Secretary for Police and to report to the Public Services Commission thereon.

Mr PHILLIP BOURAGA was charged on 7th December 1981, as Secretary for Police, with the commission of offences within the meaning of Section 76 of the Public Service (Interim Arrangements) Act 1973, namely that:

FIRSTLY the said Phillip Bouraga on or about 29 January 1981 did wilfully disobey and disregard a lawful order made by the Minister of Police, being a person having authority to make such order, in that the Minister, in writing, did ask the aforesaid Phillip Bouraga to advise on the overall priorities for funding for the next year and that Phillip Bouraga refused to do so, and in so doing did commit a disciplinary offence under Section 76(c) of the said Act.

SECONDLY the said PHILLIP BOURAGA on or about 4 February 1981 did wilfully disobey and disregard a lawful order made by the Minister for Police, being a person having authority to make such order, in that the Minister, in writing, did ask PHILLIP BOURAGA to brief him on the Highlands Law and Order situation and that PHILLIP BOURAGA refused to do so, and in so doing did commit a disciplinary offence under Section 76(c) of the said Act.

THIRDLY the said PHILLIP BOURAGA on or about 18 August 1981 did wilfully disobey and disregard a lawful order made by the Minister for Police, being a person having authority to make such order, in that the Minister, in writing, did ask the aforesaid PHILLIP BOURAGA to provide more detailed information on certain disciplinary charges and that PHILLIP BOURAGA refused to do so, and in so doing did commit a disciplinary offence under Section 76(c) of the said Act.

FOURTHLY the said PHILLIP BOURAGA on or about 26 November 1981 did wilfully disobey and disregard a lawful order made by the Minister for Police, being a person having authority to make such order, in that the Minister did request the aforesaid PHILLIP BOURAGA to brief him on the killing of a member of the Police Force and allegations of a demonstration and strike by members of the Police Force and that PHILLIP BOURAGA refused to do so and in so doing did commit a disciplinary offence under Section 76(c) of the said Act.

Mr Bouraga became an officer of the Public Service in the year 1962. On 17th April 1979 he was transferred (from the position of Secretary of the Prime Minister’s Department) to the office of Secretary for Police. That appointment came into effect on 3rd May 1979 (Gazette No. 26 of 26th April, 1979).

It is important to note that Mr Bouraga is charged with disciplinary offences as the Secretary for Police and that this Board of Inquiry is appointed to inquire into the truth of those charges in relation to Mr Bouraga’s position as a Departmental Head (see Sections 83, 84 and 85 of the Public Service (Interim Arrangements) Act 1973). There is no dispute that the Secretary for Police is the Departmental Head of the Police Department.

This is important because Mr Bouraga was also appointed Commissioner of Police at the same time as his appointment as Secretary for Police. In our view they are two separate and distinct offices. Whilst appointments to both offices are made under Section 193 of the Constitution, there are different procedures for both; there are separate duty statements for each and the Constitution prescribes the responsibilities of the office of Commissioner of Police as a distinct office created under the Constitution; Constitution Section 198.

The Board of Inquiry is therefore limited in its inquiries and concerned only with the charges in so far as they relate to Mr Bouraga’s position as Secretary for Police.

At the completion of the hearing of evidence on 15th January 1982, the Board of Inquiry considered that questions had arisen which involved the interpretation and application of the Constitution and we ruled that we were bound by Section 18 of the Constitution and accordingly referred three questions to the Supreme Court. The Board then adjourned pending the determination of those questions by the Supreme Court or otherwise. Subsequently the Board of Inquiry was informed of the intended resignation of Mr Bouraga from the office of Secretary for Police and as a public servant. In our opinion the question of resignation was relevant to the question of jurisdiction of the Board of Inquiry and we therefore re-convened the hearing on 18th February 1982 and invited submissions from all parties involved upon the question of the Board’s continuing jurisdiction. This was before the Supreme Court had met and delivered judgment upon the questions referred.

It is true that the first question referred raised the matter of jurisdiction and is now properly before the Supreme Court. However in our opinion that question involved the interpretation and application of the Constitution and is separate from the further issue which has now arisen, namely that if Mr Bouraga no longer occupies the office of Secretary for Police, does this Board of Inquiry still have jurisdiction to inquire into the truth of the charges and to report to the Public Services Commission its opinion on them?

There is a divergence of opinion as to whether Mr Bouraga has or has not effectively resigned. We find that this question is relevant and essential in determining whether or not the Board of Inquiry does have jurisdiction. We find that it is properly before us in our deliberations and we propose to give our ruling upon it.

Briefly stated, the facts which are not in dispute are as follows:

1. &##160;; O6019th 19th JanuaJanuary 1982 Mr Bouraga advised the Head of State of his decision to resign as Commissioner of Police and from the Public Service. A co thater wawarded to Mr K. Kalo the then Acting Chng Chairmaairman of n of the Public Services Commission. The date of resignation was expressed to be as from the close of business on 17th February 1982.

2. ҈ On 19th January 198y 1982 Mr Bouraga by separate letter to Mr Kalo tendered his resignation as Commissioner of Police and from the Public Service to becomective 17thuary

3. &160; &#160 &#On 5 On 5th Februaryruary 1982 the Public Services Commission formally accepted Mr Bouraga’s resignation from the Public Service to be effective from 17th February 1982.

4. ;ټ O60; On 8th 8th February 1982 Mr Bouraga was advised by Mr Edoni, the Chairman of the Public Services Commission of the acceptance of his resign and he woeceive all his entitlements up to 17th 17th FebruFebruary 1982.

5. #160;ـ On 11th February 1982 the the resignation of Mr Bouraga as both Commissioner of Police and Secretary for Police was accepted by the Head of State. TherumenAccep of Ration is in the following terg terms:

&#82>“THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Constitution

ACCEPTANCE OF RESIGNATION

I, TORE LOKOLOKO, G.C.M.G., O.B.E., K.St.J., Governor-General, by virtue of the powers conferred by the Constitution and all other powers me enabling, acting with and in accordance with, the advice of the National Executive Council, after consultation with the Permanent Parliamentary Committee on Appointments and the Public Services Commission, hereby accept the resignation of PHILIP BOURAGA as Commissioner for Police and Secretary for Police effective seven days after the Public Services Commission has concluded its proceedings and reached a decision on the charges laid against him, or 5 May 1982, the expiration date of his term of appointment, whichever first occurs.

DATED this 11th day of February, 1982.

(signed)

GOVERNOR-GENERAL”

An appointment to the office of Secretary for Police is made under Section 193(3) of the Constitution and is made by the Head of State, acting with and in accordance with, the advice of the National Executive Council given after consultation with the Public Services Commission.

There are no provisions or requirements for resignation from the office of Secretary for Police in either the Constitution, the Public Service (Interim Arrangements) Act 1973 or the Public Service Regulations. In the absence of any statute or regulations having statutory effect as to the requirements of resignation, we find that in this vacuum we must be guided by the general requirements of the Constitution, by the common law and by the balancing of interest between the Government’s need for stability and continuity as against individual liberty.

To resign office means, inter alia, to cease to perform the duties of the office after notice of intention to do so with the object and result of permanently terminating the holding of it ... see Kilgour v. CummingsN367.html#_edn889" title="">[dccclxxxix]¹.

It was submitted that because appointment to the office of Secretary for Police is made under the Constitution the holder of the office is distinct from an officer of the Public Service. We cannot accept this argument. Clearly the Secretary for Police is the Head of the Department of Police within the Public Service. The Public Service (Interim Arrangements) Act 1973 applies to or in relation to officers, employees and all other persons employed or engaged under that Act whether within or outside the territorial limits of Papua New Guinea (Section 4). The Secretary for Police is, inter alia, recruited under Section 39 of the Public Service (Interim Arrangements) Act and the Public Services Commission thereunder determines his salary and conditions and provides him with his duty statement, and is the authority to whom he is responsible for discipline. He is clearly an officer of the Public Service.

In Mr. Bouraga’s case he was an officer of the Public Service since 1962 and he was transferred within the Public Service to the office of Secretary for Police by virtue of Section 39 of the Public Service (Interim Arrangements) Act. The employing authority is the Public Services Commission.

In our opinion the normal requirement for resignation would be notice in writing to the Public Services Commission signifying intention to resign together with reasonable notice. In the circumstances of this case we are satisfied that reasonable notice has been given.

The Public Services Commission accepted Mr Bouraga’s resignation as an officer of the Public Service as from 17th February 1982 and his salary ceased on that date. In our view he ceased, by the acceptance of that resignation, to be both an officer of the Public Service and the Secretary for Police as at the close of business on 17th February 1982.

We are not persuaded that because the appointment of the Secretary for Police is made by the Head of State acting with, and in accordance with, the advice of the National Executive Council after consultation with the Public Services Commission, that resignation must follow the same course. In our view the essential requirement is reasonable notice to the employing authority, namely the Public Services Commission.

Even if we were wrong in this opinion it seems to us that there must be, as we have already said, a balancing of interest between the Government’s need for stability and continuity as against individual liberty. Clearly the acceptance of the resignation by the National Executive Council (albeit with conditions as to when it is to take effect) and the whole circumstances of the case, show that Mr Bouraga’s services are not required by the Government. In balancing that interest we find that the postponement of the acceptance of the resignation is not justified. In addition it may be contrary to Section 48 of the Constitution which guarantees every person the right to freedom of choice of employment in any calling for which he has the qualifications.

It is the unanimous view of the Board of Inquiry that Mr Bouraga ceased to be the Secretary for Police and an officer of the Public Service at the close of business on 17th February 1982.

We turn to the question of whether the Board of Inquiry has jurisdiction to continue its inquiry when Mr Bouraga is no longer the Secretary for Police.

In the case of a Reference under Section 18(2) of the Constitution by a Tribunal appointed under Section 27(7)(e) of the Organic Law on the Duties and Responsibilities of Leadership and in the matter of Joseph AunaN367.html#_edn890" title="">[dcccxc]² the Su Court had cause to c to consider this question in relation to a person liable to be dealt with under the Leadership Code. The Se Court concluded that the Tribunal had no jurisdiction once the holder of the office no lono longer occupied that office.

In our view that decision is relevant to the position of this Board of Inquiry and is binding upon us. It is true that there is a distinction in that Auna’s case (supra) is dealing with the Organic Law on the Duties and Responsibilities of Leadership, but nevertheless we are of the opinion that the principles expounded in that case are relevant to this inquiry.

Thus it is clear that if this Board were to find the charges proved then the sanctions which may be imposed are dismissal from office or the imposition of a fine, reduction in pay or rank, or transfer to another office or location. As in Auna’s case (supra) the major punishment provision presupposes that the offending person can be dismissed from office - that is, it presupposes that the officer is currently holding that office when the Board of Inquiry decides the matter.

Division 4 of Part VII of the Public Service (Interim Arrangements) Act dealing with disciplinary offences by Departmental Heads is directed to persons actually in office and again, to borrow from the words of the Supreme Court, the entire thrust of that legislation is directed towards removing a person or imposing other punishment on a person who is considered, after due inquiry, to be unworthy of continuing in office or deserving of some lesser punishment. The purpose of Division 4 of Part VII of the Act is the maintenance of discipline within the Public Service. Once an officer has resigned he is immune from any of those punishments so that any further proceedings of this Board would only be academic and meaningless as far as maintenance of discipline was concerned.

Nowhere in the Public Service (Interim Arrangements) Act is there any suggestion that an officer of the Public Service who has resigned remains subject to the Act.

Again the reference to suspension throughout Division 4 of Part VII of the Act points to a person currently in office.

It follows, in our opinion, that this Board of Inquiry no longer has jurisdiction to continue to inquire into the truth of the charges and to report to the Public Services Commission its opinion upon them.

There is one further matter and that concerns the three questions which the Board has referred to the Supreme Court. It is our opinion that those questions are now before the Supreme Court and that they cannot legitimately be withdrawn by the Board. Accordingly the Board will advise the Supreme Court of the result of this inquiry for its consideration in relation to those questions.

Having commenced to inquire into the truth of the charges the Board of Inquiry now reports to the Public Services Commission that in its opinion Mr Phillip Bouraga is no longer a Departmental Head or an officer of the Public Service and that the Board of Inquiry has no further jurisdiction in the matter.

The Board’s report is unanimous.

DATED this 22nd day of February 1982.

Chairman (Sgn)

Departmental Head (Sgn)

Departmental Head (Sgn)

<89">N367.html#_ednref889" title="">[dccclxxxix]^{[1941] NZGazLawRp 102; (1941) N.Z.L.R. 972}

N367.html#_ednref890" title="">[dcccxc]^{(Unreported) judgment SC 188 of 2nd December 1980}