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Public Employees Association of PNG v National Executive Council [1993] PGNC 5; N1163 (5 August 1993)

Unreported National Court Decisions

N1163

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 115 OF 1993
BETWEEN:
PUBLIC EMPLOYEES ASSOCIATION OF PAPUA NEW GUINEA - Plaintiff
And:
THE NATIONAL EXECUTIVE COUNCIL - 1st Defendant
And:
ATTORNEY GENERAL (As Nominal Defendant for the Head of State) - 2nd Defendant
And:
LUKE LUCAS - 3rd Defendant

Waigani

Sheehan J
2-3 August 1993
5 August 1993

NATIONAL PUBLIC SERVICE - Challenge to appointment of departmental head - Whether constitutional power of appointment in National Executive Council is qualified by Public Services (Management) Act 1986.

Counsel:

Mr J Yagi for the Plaintiff

Mr J Griffin QC and Mr M Wilson for 1st & 2nd Defendants

Mr J Bray for 3rd Defendant

5 August 1993

SHEEHAN J: On 14 May 1993 the Head of State acting on advice of the National Executive Council, given after consultation with the Public Service Commission appointed Mr Luke Lucas to be Secretary of the Department of the Attorney-General for a period of four years.

The appointment was made pursuant to s. 193 (3) of the Constitution and s. 24 and 25 of the Public Services (Management) Act 1986 (hereafter referred to as ‘the Act’) and formally gazetted the same day.

The Plaintiff Union protested the appointment on grounds inter alia that it contravened legal requirements relating to retirement age under the Act and declared Government Policy under General Orders. The State was unmoved by those representations and industrial action followed. The Plaintiff then issued these proceedings.

The issues have been comprehensively argued and the Court is grateful for their wide ranging examination of the issues.

Mr Yagi counsel for the Plaintiff contended that the terms and conditions of employment of all officers of Public Service are governed by the Act. He pointed to s. 2 which states:

“2 This Act applies to all officers, employees and all other persons otherwise employed or engaged under this Act whether inside or outside Papua New Guinea.”

He submitted that the National Executive Council is equally bound by the Act. While the Parliament has subject to the constitution the authority and discretion as to what laws it passes, once it makes a law, it is itself bound by that law till it changes it. Accordingly the age limit on officers set out in the Act binds the National Executive Council. Because of this the appointment of Mr Lucas cannot stand. He is a former Public Service officer who ended his Public Service career in 1990 when reaching the compulsory retirement age of 60 years. He was therefore not eligible for further appointment to the Public Service. His disqualification from appointment is brought about solely because s. 51 of the Act precludes any officer from employment in the Public Service after the age of 60 years.

That section reads:

“51 Age of Retirement

(1) Subject to this section as officer who has attained the age of 50 is entitled to retire from the Public Service if he desires to do so, but such an officer may, subject to this Act, continue in the Public Service until he attains the age 60.

(2) An officer who continues in the Public Service after he has attained the age at which he is entitled to retire:

(a) may be retired from the Service at any time before attaining the age of 60 years; and

(b) shall retire from the Service on attaining the age of 60 years.

(3) A retirement under subs (2) (a) shall be effected by the Departmental Head of the Department of Personnel Management.”

Further argument was advanced that the appointment is also contrary to the National Executive Council’s own State Services policy directives and General Orders which derive statutory authority from the Act.

Mr Griffin, Counsel for the 1st and 2nd Defendants contended that the appointment is valid in all respects and not open to challenge. This is because the Constitution clearly provides that the appointment of Departmental Heads are to be made by the Head of State acting on the advice of the NEC which shall in turn have consulted the Public Service Commission before tendering advice to the Head of the State.

That has been done. The gazettal of the appointment clearly states that these procedures have been followed. Thus this appointment cannot be questioned. The Defendants argued that the Constitutional authority to appoint places no boundaries or conditions on who may be appointed. Accordingly it can be safely said that any person the NEC considers suitable can be appointed. Such persons’ qualifications, status, age etc are matters solely for the NEC to consider.

In any case, notwithstanding provisions in the Public Service (Management) Act 1986 requiring retirement of officers within the service at age 60, there is no prohibition on the appointment of a Departmental Head after retirement or after attaining that age.

There is such a prohibition in respect of to the Public Service Commission appointees after the age of 60, just as there is in comparable acts such as the Organic Law on Terms and Conditions of Employment of Judges.

The absence of any such prohibition in the Act is respect of Departmental Heads it is argued reinforces the contention that the National Executive Council discretion is not limited. Mr Griffin said the separate form of appointment of Departmental Heads as opposed to ordinary officers of the Public Service is also significant, supporting the submission that Departmental Heads are not “officers” of the Public Service in the same sense as those appointed under s. 34 of the Act.

The Constitution provides authority for the appointment, the Act provides for the manner of employment while the appointee is in office. That is, through s. 25B the Act provides for a contract to be drawn up determining terms and conditions of employment of the Departmental Head while he is with the Public Service. Section 25D provides for termination from the Public Service when his contract expires.

Mr Bray for Mr Lucas the 3rd Defendant supported the submissions of Mr Griffin. He pointed to what he called the evolution of the Public Service from an organisation where staff held long term tenure to a present day Service requiring greater accountability evidenced by appointments on contract. Now Departmental Heads and Senior Management officers my be appointed under contract. He argued that to place restriction on the NEC power to appoint under contract was in effect imposing restrictions on its legal capacity to contract and or its ability to deliver on contracts it enters into.

He also pointed out that the Public Service Commission, the Public Service watchdog and the body consulted in this appointment has voiced no concern as to the 3rd Defendants eligibility.

DECISION

There can be no doubt that the National Executive Council through the Head of State does have the sole power of appointment of Departmental Heads. Section 193 (1) and (3) of the Constitution make that clear.

193. APPOINTMENTS TO CERTAIN OFFICES

(1) This section applies to and in respect of the following offices and positions:

(a) all offices in the National Public Service the occupants of which are directly responsible to the National Executive Council or to a Minister; and

(3) All appointments (whether temporary or substantive) to which Subsection (1)(a), (d), (f) and (g) apply and such other offices and positions as are prescribed by an Act of the Parliament for the purpose of this subsection, shall be 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.

The Constitutional Planning Committee illustrated the reason for that when its said:

“12. We support the widely accepted the principle that the Government must have confidence in those who have the major responsibility for tendering it advice and carrying out its policies.

13. Secondly, therefore although the Commission should be consulted on the respective merits of the candidates, it should be the National Executive Council that selects the persons to be appointed Heads of Departments (CPC) report ch. 12 p. 2.”

At issue between the parties is the question whether there are any restrictions on that power of appointment. Can the NEC affectively appoint anyone regardless of status, qualification or age. Or must the appointment be limited to those persons who meet the criteria of the Public Service (Management) Act 1986. In particular it is open to the NEC to advise the appointment of a person over the age of 60 years to a post of Departmental Head? The answer to this must be found by examination of the Constitutional provisions and the Statute itself.

Section 193 of the Constitution establishes the power of appointment in the Head of State acting on advice. From that section it can be noted that a Departmental Head reports to the NEC or a Minister. The office of Departmental Head can also be seen to be one “prescribed by an Act of the Parliament”. Sections 24 and 25 in the Act provide for the appointment of Departmental Heads. They do little more than reaffirm the Constitutional provisions of s. 193.

The Public Service (Management) Amendment Act 1988 introduced contracts of employment for Departmental Heads. Section 2 of that Act provided supplementary sections 25 A, B, C and D to the principal Act to implement that purpose. Those sections read as follows:

“25A. APPLICATION

The Head of State, acting on advice, may, by notice in the National Gazette, specify the Departmental Heads to whom the provisions of this Division apply.

25B. CONTRACTS OF EMPLOYMENT

(1) A Departmental Head shall be employed under, and shall hold office in accordance with the terms and conditions of, a contract of employment with the State.

(2) A contract of employment under Subsection (1) shall be executed by the Head of State, acting on advice, on behalf of the State, and by the Departmental Head.

25C. EMPLOYMENT UNDER CONTRACT TO CONSTITUTE SERVICE

Employment under contract under this division shall constitute service in the National Public Service for all purposes.

25D. CESSATION OF EMPLOYMENT IN PUBLIC SERVICE

A person who is appointed to be a Departmental Head and accordingly enters into a contract of employment under this division, shall, on the termination of his employment in accordance with the contract of employment, cease to be an officer or employee of the Public Service.”

Section 195 of the Constitution states that Parliament may enact statutes providing for the structure and organisation of the Public Service, the appointment and terms and conditions of appointment and employment in the Public Service. It has done so in the form of the Public Services (Management) Act 1986.

In May of this year, Mr Lucas then over the age of 60 years was appointed and contracted in accordance with the provisions of that Act as amended. Has this resulted in his being an ‘officer’ in the Public Service subject to the provisions of the Act in just the same way as a permanent career officer of equal status appointed under s. 34.

I am satisfied the appointment establishes him as an ‘officer’ of the Public Service in all respects (S. 25C). A Departmental Head does not stand outside the Public Service. Any such appointment is one made to a post within the organisation that is the Public Service. The contract entered into (declared to be made under the Act) recognises that in the preamble at B where it says that “the Departmental Head has agreed to serve the State as a Public Servant”. Paragraph C of the contract goes on to acknowledge that the provisions of the Public Service (Management) Act 1986 determine the mode of employment as a Public Servant and that the standard terms and conditions for employment of Departmental Heads shall apply.

Paragraph 2 of the contract confirms that where the contract is silent General Orders shall prevail. While the contract specifies a term of 4 years employment, it may be noted that General Order 11.29 states “The same conditions for Age retirement apply to Departmental Heads as those that apply to permanent officers”.

Under this Act by s. 25C it can be seen that “employment under contract...shall constitute service in the National Public Service for all purposes” a plain and broad statement. Now while the definition section of the Act is not helpful (‘officer’ is an officer in the Public Service) it does not exclude a Departmental Head from being an ‘officer’. Section 2 says that the “Act applies to all officers employees and all other persons engaged under this Act”. Under that definition Mr Lucas must be at least a “person otherwise engaged”. But s. 25D shows that Departmental Head employed under contract must be an officer, for he ceases to be one when his contract is terminated. Section 52(1) which deals with retirement of Departmental Heads also refers to them as ‘officers’.

That section reads:

52. RETIREMENT ON ACCOUNT OF INFIRMITY OR INCAPACITY

(1) If a Departmental Head appears to the Head of State, acting on advice, after full investigation of the circumstances:

(a) to be, by reason of mental or bodily infirmity for any other reason, until to discharge or incapable of discharging the duties of his office efficiently; or

(b) to have ceased to have the qualifications specified for his office, or to be or to have become legally disqualified from carrying out those duties or legally incompetent to carry them out,

the Head of State, acting on advice given after receiving a report from the Department of Personnel Management, may retire the officer from the Public Service or transfer him to some other position of equal or lower status and pay. (emphasis added).

But the Defence submissions contend that notwithstanding a Departmental Head employed under contract may be deemed an officer of the Public Service, because there is no direct prohibition on the appointment of a person past age 60 that provision (s. 51) effective for officers within the service does not apply.

Opposing that is the direct statements of s. 25C and of s. 2. By these the Act and therefore subs 51 applies to all persons employed under the Act. I would add that s. 51 is not just a retirement provision for officers of ‘other ranks’. It has a two fold purpose that provides for all or any officer to retire if he desires at age 50 and requires retirement of age 60.

Section 52 states that Head of State may retire on officer who has become legally disqualified from carrying out duties. Notwithstanding that this section says that Head of State may retire an officer, that phraseology does not indicate a discretion in the Head of State to allow a Departmental Head to continue past legal retirement age. The use of the word ‘may’ only reflects the discretion accorded, given the variety of circumstances that the section provides for.

Again, given the fact that Departmental Heads must be employed under contract, can it be said that in the absence of clear direction that Parliament, intends that s. 51 applies to those contracted officers who were engaged before 60 but that those engaged after 60 are exempt. That would not seem likely.

Comparison can also be made with the provisions in the Public Service (Management) (Amendment) Act 1993 which provides for Senior Management Officers to be filled by contract officers in terms not dissimilar to s. 25A B C and D.

Under a new Part XA - Contract Employment s. 38A (3) states:

“38A. DESIGNATION OF SENIOR MANAGEMENT OFFICES

(1) The Minister may, pursuant to a directive of the National Executive Council, by notice in the National Gazette, designate an office, other than an office to Departmental Head created under s 21, as a senior management office and the provisions of this Part shall apply to an office so designated.

(2) A notice under Subsection (1) shall specify, in relation to each senior management office, whether a person is to be appointed to that office by:

(a) the Head of State, acting on advice; or

(b) the Departmental Head of the Department of Personnel Management,

and an appointment shall be made in accordance with this Act.

(3) A person to be appointed to a senior management office shall:

(a) be an officer of the Public Service; or

(b) subject to subsection (4) by virtue of his appointment become on office of the Public Service.

(4) A person referred to in subs (3) (b) shall only be appointed if he is eligible for appointment to the Public Service as otherwise required by this Act.”

Notwithstanding argument that this may be a reference to qualification under s 34 of the Act there is nonetheless requirement of compliance with the Act and it is equally arguable that s. 51 would also come into play.

Argument has been advanced that lack of direct prohibition means Parliament intended no restriction on appointments. But if that is the intention of Parliament it is directly contrary to General Orders. These take statutory authority from s. 53 of the Act and reflect the policy decisions of the NEC itself (53 (2)). General Orders (O.11.29) states that the same conditions in respect of retirement age apply to Departmental Heads as to other permanent officers.

In the interpretation of statutes it is often appropriate to look at other comparable statutes. When the provisions regarding age are examined in this Act and other Acts regarding officers engaged is the State Services and government agencies generally, it can be seen that by statutory provision and through policy in the form of General Orders the Parliament and the NEC have placed direct limit on the age of those who may be employed.

This is seen in the provisions regarding Public Service Commission members under this Act. There are similar provisions in the Organic Law on the Terms and Conditions of Employment of Judges and the Organic Law on Certain Constitutional Office Holders. Section 14 of the Organic Law on National Elections imposed retirement and prohibited reappointment of the 3rd Defendant as Electoral Commission by reason of age criteria. Similar provisions appear in Acts relating to the Police, the Defence Forces and the CIS. Even Statutory Agencies such as the Harbours Board face age restrictions on Board members. In contrast, for consultants not directly engaged in the Public Service itself, there are no such age limits.

Thus through constitutional, statutory and policy provisions the conclusion as to the intention of Parliament must simply be that age limits are imposed or persons to be engaged in State services and agencies.

Given all those restrictions on age it is surely not reasonable to determine that because of lack of specific wording the defendants require it must be implied that persons over the age of 60 years appointed to be Departmental Heads were intended to be exempt from the specifics of s. 51.

Finally, a finding that the Head of State acting on the advice of the NEC cannot appoint a Departmental Head who is disqualified on account of age does not constitute a restriction on the NEC power to appoint, nor its capacity to contract. There can be no restriction or denial of authority when the lawful authority to so contract does not exist.

In any case s. 54 of the Interpretation Act restricts, or better, saves, invalid appointments insofar as they do not contravene a statutory provision as to age limits. Of course that section cannot save an appointment invalid from the outset.

It reads:

54. EFFECT OF APPOINTMENTS BEYOND STATUTORY PERIOD

Where:

(a) a statutory provision prohibits the appointment of a person that extends beyond the date on which he will attain a specified age; and

(b) a purported appointment is made for a period that extends beyond that date, the appointment is a valid appointment in respect of the period that does not extend beyond that date.

I am satisfied that s. 51 of the Act is a statutory provision restricting appointment of Departmental Heads.

I am satisfied that while the Head of State acting on advice has sole power of appointment of Department Heads but nonetheless is restricted by s. 51 of the Public Service (Management) Act 1986 (as amended) from appointment of a person who has already attained the age of 60 years. The authority and discretion given under s. 193 of the Constitution has been restricted, in the matter of age, by the Parliament itself.

It being admitted that Mr Lucas has already attained 60 years his appointment can only be declared to have been made contrary to law.

There will therefore be a declaration of this Court to that effect.

Lawyer for the Plaintiff: Kiriwom Lawyers

Lawyer for the 1st & 2nd Defendant: Warner Shand Lawyers

Lawyer for the 3rd Defendant: Pato Lawyers