N7668
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (HR) NO 23 OF 2018

AGNES MILLIA OKONA-METEN
Plaintiff

V

LESLIE B MAMU, PUBLIC SOLICITOR OF PAPUA NEW GUINEA
Defendant 

Cannings J
Madang: 3 January 2019
Waigani: 30 January 2019

HUMAN RIGHTS – Constitution, Section 41 (proscribed acts) – whether a failure to provide accommodation to an officer of a constitutional institution can amount to a breach of human rights – proving that an act is harsh, oppressive or otherwise proscribed by Section 41 – whether plaintiff given unequal, unfair or discriminatory treatment.          

The plaintiff is a lawyer in the Office of Public Solicitor, engaged as solicitor-in-charge of a provincial branch under a three-year written contract of employment. She brought proceedings against the Public Solicitor (the defendant) claiming that his refusal to make arrangements for payment of her residential accommodation or for provision of institutional accommodation was harsh, oppressive and in other ways a proscribed act and therefore amounted to a breach of her human rights under Section 41 of the Constitution. Provision of accommodation was not a contractual entitlement. However the plaintiff argued that, as lawyers in other parts of the country holding equivalent positions and doing the same job as her were provided accommodation, she was left out and given unequal and unfair treatment resulting in her and her family enduring financial hardship and stress which the defendant failed to take into account in his decision-making. The plaintiff sought a declaration that the defendant’s refusal to provide or pay for her accommodation was in the circumstances of her case harsh, oppressive etc, and an order that the defendant pay her rent back-dated to the date (five years before trial) that she commenced her engagement as solicitor-in-charge and continuing to the end of her present contracted period of employment. 

Held:

(1)	Section 41 of the Constitution creates rights, freedoms and protections (and thereby imposes obligations) in the same way as other human rights provisions of Division III.3 of the Constitution. It is open to a person employed under a written contract of employment to establish a cause of action for breach of human rights by proving that acts of their employer are harsh, oppressive or otherwise proscribed and unlawful under Section 41. 

(2)	Section 41(2) provides that the burden of showing a breach of human rights under Section 41 of the Constitution rests on the person alleging it and may be discharged on the balance of probabilities. 

(3)	The plaintiff’s case, which was based on the allegation that the defendant provided accommodation to other officers throughout the country holding the equivalent position to hers and that she was missing out and treated differently, unequally or unfairly, was not supported by the facts, as of the 17 equivalent officers in the country, the defendant directly provided accommodation for only three of them. 

(4)	The plaintiff was unable to show that she was missing out on a privilege conferred on others doing the same job as her, or being treated unequally or unfairly or that the defendant’s refusal to provide accommodation was the result of bad faith or discrimination or some other improper motive. 

(5)	The plaintiff failed to show that the actions of the defendant were harsh or oppressive or in any other way proscribed by Section 41(1). All relief sought by the plaintiff was refused and the proceedings were entirely dismissed. 
 
Cases cited
The following cases are cited in the judgment:

Application by Tom Ireeuw [1985] PNGLR 430
Bank of Papua New Guinea v Muteng Basa [1992] PNGLR 271
Curran v The State (1994) N1259
David Simon v Michael Koisen (2018) N7075
Department of Works v International Construction (PNG) Ltd (2008) N5896
James Geama v OTML Shares In Success Ltd (2011) N4269
Joe Kape Meta v Kumono, Kulunio & The State (2012) N4598
Joyce Avosa v Rene Motril (2014) N5732
Kamit v Aus-PNG Research & Resources Impex Ltd (2007) N3112
Max Umbu v Steamships Ltd (2004) N2738
Morobe Provincial Government v John Kameku (2012) SC1164
Nowra No 8 Pty Ltd v Kala Swokin [1993] PNGLR 498
Paru v Kotigama & Bmobile-Vodafone (2015) N6089
Petrus & Gawi v Telikom PNG Ltd (2008) N3373
Raz v Matane [1985] PNGLR 329
Re Ricky Yanepa [1988-89] PNGLR 166
Tarere v ANZ Bank [1988] PNGLR 201

APPLICATION

This was an application for enforcement of human rights.

Counsel

S Phannaphen, for the Plaintiff
T Ilaisa, for the Defendant 

30th January, 2019 

1.      CANNINGS J: The plaintiff, Agnes Millia Okona-Meten, is a lawyer in the Office of Public Solicitor, engaged as solicitor-in-charge of the Madang branch.  She has commenced proceedings against the defendant, Leslie B Mamu, the Public Solicitor of Papua New Guinea, claiming that his refusal to make arrangements for payment of her residential accommodation or for provision of institutional accommodation is harsh, oppressive and in other ways a proscribed act and therefore amounts to a breach of her human rights under Section 41(1) of the Constitution. 

2.    The plaintiff’s home province is Morobe. She had been living in Madang for four years when on 3 January 2008 she was recruited locally and commenced employment as a senior legal officer with the Office of Public Solicitor. On 3 January 2014 she was promoted to her current position of solicitor-in-charge under a three-year written contract of employment. She was re-engaged under another three-year contract on 3 January 2017.

3.     Provision of accommodation is not and never has been a contractual entitlement. However the plaintiff argues that, as lawyers at the defendant’s offices in other parts of the country holding the position of solicitor-in-charge and doing the same job as her are provided accommodation, she has been left out and given unequal and unfair treatment. This, she alleges, has resulted in her and her family enduring financial hardship and stress which the defendant has failed to take into account in his decision-making. 

RELIEF SOUGHT BY PLAINTIFF

4.    The plaintiff seeks a declaration that the defendant’s refusal to provide or pay for her accommodation is in the circumstances of her case harsh, oppressive etc, and an order that the defendant pay her rent back-dated to the date (3 January 2014) that she commenced her engagement as solicitor-in-charge and continuing to the end of her present contracted period of employment (3 January 2020). 

5.     Formally the amended originating summons filed on 19 November 2018 seeks two substantive remedies:

1.	A declaration under Section 57 of the Constitution that the defendant’s refusal to provide accommodation rentals for the plaintiff who is the solicitor-in-charge, Madang branch of the Public Solicitor’s Office, since 2014, whilst providing rented accommodation for [the] rest of his officers holding similar positions nationwide, is contrary to the plaintiff’s protected rights under Section 41 of the Constitution and therefore is: 

1)	harsh; 
2)	oppressive; 
3)	not warranted by the requirements of the particular circumstances; 
4)	disproportionate to the requirements of the particular circumstances; 
5)	not warranted by the requirements of the particular case; 
6)	disproportionate to the requirements of the particular case; and 
7)	otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.

2.  An order therefore that the defendant shall provide rentals for the plaintiff’s accommodation backdated to 3 January 2014 to date, and for the remainder of her contracted term as the solicitor-in-charge of Madang branch of the Public Solicitor’s Office.

THE DEFENDANT’S RESPONSE 

6.     The defendant refutes the allegations that he is treating the plaintiff unequally or unfairly or that she is missing out on something (accommodation) that is provided to others. The defendant asserts that the plaintiff’s case is based on the premise that all other lawyers holding the same position and doing the same job as her are provided with accommodation, which is simply untrue. The defendant asserts that all relief sought by the plaintiff should be refused and the proceedings should be entirely dismissed. 

SECTION 41 AND WHAT IS NOT IN DISPUTE

7.     Before examining the issues that are in dispute it is worthwhile spending some time on what is not in dispute. It is an interesting aspect of this case that the parties agree on some things that have not been agreed in other cases. Section 41 of the Constitution is a very special and potentially powerful provision because of its apparently all-embracing terminology. But it is also a controversial and contentious provision. Forty-three years after Independence there are still sharply divergent judicial views as to what it means and how it operates. Section 41 states: 

(1)	Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case—

(a)	is harsh or oppressive; or
(b)	is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or
(c)	is otherwise not, in the particular circumstances, reasonably justifiable 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 (1)(a), (b) or (c) applies in respect of an act is on the party alleging it, and may be discharged on the balance of probabilities.

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

8.    Section 41 proscribes (ie prohibits) and gives protection against seven sorts of acts (Morobe Provincial Government v John Kameku (2012) SC1164, Petrus and Gawi v Telikom PNG Ltd (2008) N3373; Joe Kape Meta v Kumono, Kulunio & The State (2012) N4598). Even if done under a valid law and notwithstanding anything to the contrary in any law, an act is unlawful if it is, in the particular case:

•	harsh; or
•	oppressive; or
•	not warranted by the requirements of the particular circumstances; or
•	disproportionate to the requirements of the particular circumstances; or
•	not warranted by the requirements of the particular case; or
•	disproportionate to the requirements of the particular case; or
•	otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.

9.     Under Section 41(2) the burden of showing that another person has committed an act falling within one of the seven categories of acts proscribed by Section 41(1) is on the party alleging it. 

10.     Section 41 is in Division III.3 (basic rights) of the Constitution, surrounded by provisions that very clearly confer the following rights and freedoms on all persons (or in some cases only citizens) in Papua New Guinea:  

•	right to freedom (s 32);
•	right to life (s 35);
•	freedom from inhuman treatment (s 36);
•	protection of the law (s 37);
•	liberty of the person (s 42);
•	freedom from forced labour (s 43);
•	freedom from arbitrary search and entry (s 44);
•	freedom of conscience, thought and religion (s 45);
•	freedom of expression (s 46);
•	freedom of assembly and association (s 47);
•	freedom of employment (s 48);
•	right to privacy (s 49);
•	right to vote and stand for public office (s 50);
•	right to freedom of information (s 51);
•	right to freedom of movement (s 52);
•	protection from unjust deprivation of property (s 53);  
•	equality of citizens (s 55).

DIFFERENT APPROACHES 

11.     The vexed question that arises is this: does Section 41 create an enforceable right or freedom – the right of protection against, or freedom from, harsh or oppressive actions – in the same way as do the other provisions of Division III.3? 

12.     Some Judges have said no, Section 41 does not create rights and freedoms as such. It is not enforceable under Section 57 of the Constitution in the same way that the other provisions of Division III.3 are. It has a restricted application. It cannot, for example, apply in a contractual situation. This can be labelled the narrow approach to Section 41. It has been taken by Kidu CJ and Kapi DCJ in the Supreme Court in Raz v Matane [1985] PNGLR 329, and by the National Court decisions of Cory J in Application by Tom Ireeuw [1985] PNGLR 430, Hinchliffe J in Tarere v ANZ Bank [1988] PNGLR 201, Brown J in Bank of Papua New Guinea v Muteng Basa [1992] PNGLR 271 and Curran v The State (1994) N1259, Salika J in Max Umbu v Steamships Ltd (2004) N2738, Hartshorn J in Department of Works v International Construction (PNG) Ltd (2008) N5896 and James Geama v OTML Shares In Success Ltd (2011) N4269. 

13.     Other Judges have said yes, Section 41 creates rights and freedoms and is enforceable under Section 57 of the Constitution in the same way that the other provisions of Division III.3 are. It is all-embracing and has no restricted application. It can be invoked in a contractual situation, including in a contract of employment. This can be labelled the broad approach to Section 41. It was championed in the Supreme Court by Amet J in his strong dissenting opinion in Raz v Matane [1985] PNGLR 329, and adopted in the National Court by Brunton AJ in Re Ricky Yanepa [1988-89] PNGLR 166, Los J in Nowra No 8 Pty Ltd v Kala Swokin [1993] PNGLR 498, Cannings J in Kamit v Aus-PNG Research & Resources Impex Ltd (2007) N3112, Petrus & Gawi v Telikom PNG Ltd (2008) N3373, Joyce Avosa v Rene Motril (2014) N5732, Paru v Kotigama & Bmobile-Vodafone (2015) N6089 and David Simon v Michael Koisen (2018) N7075. 

14.     I have consistently adopted the broad approach to interpretation of Section 41. Neither the plaintiff nor the defendant suggested that any other approach should be taken. So it is agreed and accepted that the following principles apply to this case: 

•	human rights as conferred and defined by the Constitution have universal application, and cannot be said to have no operation in any situation;

•	Section 41 of the Constitution creates rights, freedoms and protections (and thereby imposes obligations) in the same way as other human rights provisions of Division III.3 of the Constitution;  

•	it is open to a person employed under a written contract of employment to establish a cause of action for breach of human rights by proving that acts of their employer are harsh, oppressive or otherwise proscribed and unlawful under Section 41, even if no breach of contract is committed; 

•	Section 41(2) provides that the burden of showing a breach of human rights under Section 41 of the Constitution rests on the person alleging it and may be discharged on the balance of probabilities. 

ISSUES 

15.     The issues can, in light of the agreement of the parties about interpretation and application of Section 41, be reduced to these:

1	Has the plaintiff proven the factual allegations?

2	Has the plaintiff established a cause of action for breach of human rights?

3	What orders should be made?

1	HAS THE PLAINTIFF PROVEN THE FACTUAL ALLEGATIONS?

16.     The plaintiff has given evidence of what she believes to be the accommodation arrangements made for solicitors-in-charge of other provincial branches of the Office of Public Solicitor. That evidence is vague and of little value, when assessed alongside the defendant’s evidence which shows that the accommodation arrangements can be put into four categories: 

A 	the provincial or regional government provides accommodation for the solicitor-in charge; or 

B	institutional accommodation is provided, ie a house owned or built by the National Housing Corporation or some other public authority, which is reserved for the solicitor-in-charge; 

C	the Public Solicitor provides accommodation rent-free to the solicitor-in-charge; 

D	the solicitor-in-charge is responsible for their own accommodation, ie must make their own arrangements at their own cost. 

17.     The plaintiff has not challenged the defendant’s evidence, which is significant as it is at odds with her evidence. I see no reason to question the defendant’s evidence so I make the following findings of fact based on his evidence. The table below summarises the accommodation arrangements for solicitors-in-charge. 

ACCOMMODATION ARRANGEMENTS FOR SOLICITORS-IN-CHARGE
 No	Province/region	Town 	Category	
1.		Bougainville 	Buka	B	
2.		East New Britain	Kokopo	B	
3.		East Sepik 	Wewak	D	
4.		Eastern Highlands 	Goroka 	C	
5.		Enga 	Wabag	A	
6.		Gulf 	Kerema 	D	
7.		Madang 	Madang 	D	
8.		Manus	Lorengau	D	
9.		Milne Bay	Alotau	A	
10.		Morobe 	Lae 	D	
11.		New Ireland 	Kavieng	C	
12.		Northern  	Popondetta 	D	
13.		Simbu	Kundiawa	A	
14.		Southern Highlands 	Mendi	C	
15.		West New Britain	Kimbe	B	
16.		West Sepik	Vanimo 	B	
17.		Western Highlands	Mt Hagen 	B	

To sum up:

3 branches are in category A;
5 branches are in category B;
3 branches are in category C;
6 branches are in category D. 

18.     Significantly, in only three (category C) of the 17 branches does the defendant directly provide accommodation for the solicitor-in-charge. As for the balance of 14 branches, the solicitor-in-charge gets accommodation, at no cost to the Office of Public Solicitor, at eight branches (categories A and B), and at the other six branches (category D) the solicitor-in-charge has to make their own arrangements. 

19.      The defendant stated in evidence that the decision was made to provide accommodation at three branches (Goroka, Kavieng and Mendi) as the solicitor-in-charge at each of those branches was recruited from outside the province. Employer-provided accommodation was offered as an incentive to the successful candidates for those positions, so that they would be encouraged to move. 

20.     The defendant explained that of the senior legal positions at head office in Port Moresby, both deputy public solicitors (higher in rank to a solicitor-in-charge) provide their own accommodation: they fall within category D; and all eight principal legal officers (of the same rank as a solicitor-in-charge) also fall within category D. 

21.      I accept the defendant’s evidence and find that the facts of this case are quite different to the allegations made by the plaintiff: that all or most other solicitors-in-charge throughout the country were provided with accommodation and she was missing out. That is not correct. The defendant directly provides accommodation for the solicitor-in-charge at only three of 17 branches. The plaintiff has failed to prove the factual allegations on which her case is based. 

2	HAS THE PLAINTIFF ESTABLISHED A CAUSE OF ACTION FOR BREACH OF HUMAN RIGHTS?

22.     Once the facts have been revealed it can be seen that the defendant’s refusal to provide or pay for the plaintiff’s accommodation was made for valid business and budgetary reasons, in a way that did not single out the plaintiff for special treatment or discriminate against her for any improper reason. The plaintiff has not proven that she has been missing out on a privilege conferred on others doing the same job as her, or treated unequally or unfairly or that the defendant’s refusal to provide accommodation was the result of bad faith or discrimination or some other improper motive. His actions cannot reasonably be regarded as harsh or oppressive or fall into any other description of proscribed acts in Section 41(1) of the Constitution. 

23.     The plaintiff has failed to discharge the burden cast upon her by Section 41(2) of showing that any acts of the defendant fall within any of the descriptions of proscribed acts in Section 41(1). She has failed to establish a cause of action for breach of human rights. 

3	WHAT ORDERS SHOULD BE MADE?

24.     The plaintiff will get none of the relief she seeks. Normally costs would follow the event especially in a case such as this where the plaintiff has failed by a large margin in proving the facts on which her claims were based. However, I don’t think a costs order would assist the parties in working through their differences, which they must now set about doing earnestly and quickly. 
 
25.     I feel that the operations of the Madang branch of the Office of Public Solicitor have been adversely affected by this case and the discontent and misunderstandings that have developed. It was revealed in evidence that the defendant laid a disciplinary charge against the plaintiff in the lead-up to the trial, charging her in relation to commencement of these proceedings against the defendant. I really don’t think that was a good idea. When all is said and done, even though the plaintiff has lost, she was only seeking to enforce her human rights. I think the defendant should bear that in mind and consider withdrawing the charge. 

ORDER

(1)	All relief sought in the amended originating summons filed 19 November 2018 is refused and the proceedings are entirely dismissed. 

(2)	The parties shall bear their own costs. 

(3)	The application for enforcement of human rights is thereby determined and the file is closed. 

Judgment accordingly.
________________________________________________________________
Lhyrn Lawyers: Lawyers for the Plaintiff	
Public Solicitor: Lawyer for the Defendant