N9720

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 97,99,101 & 102 OF 2021

BETWEEN:
JOSEPH TENGE TOMEROP, AGNES MEREP JONAH, PROFESSOR CHALAPAN KALUWIN, LANIETH AUA
Plaintiffs

AND:
WESLEY RAMINAI
In his capacity as Minister for Sports and Higher Education, Research, Science, and Technology
First Defendant

AND:
PUBLIC SERVICE COMMISSION
Second Defendant

AND:
NATIONAL EXECUTIVE COUNCIL
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Tamade, AJ
2021: 17th November
2022: 6th & 10th June

REGULATORY STATUTORY AUTHORITIES – Appointment of non-ex officio members of boards of regulatory statutory authority - the Minister shall make a submission on appointment to the National Executive Council for its consideration - appointment members to the National Agriculture Research Institute Council.

HIGHER EDUCATION (General Provisions) (Amendment) ACT 2020 – Section 44 (repeal and replacement section 152) – Minister may in the interest of the institution appoint an interim governing body – plaintiffs claim legitimate expectation to be selected as council members –minister acted lawfully pursuant to s152 – plaintiffs’ right are subject to the overall best interest of the National Agriculture Research Institute Council.

PRINCIPLE OF NATURAL JUSTICE – minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly – plaintiffs claim the minister acted ultra-virus – minister acted pursuant to s152 of the Higher Education (General Provisions) (Amendment) Act 2020.

Cases Cited

The following case is cited in the judgment:

National Capital District Interim Commission v Crusoe Pty Ltd [1990] PNGLR 139
Barrick (Niugini) Ltd v Nekital [2020] PGNC 180; N8409 
SCR NO 1 of 1990; Re Recount of Votes [1990] PNGLR 441
Dopsie v Tetaga, Chairman, Public Services Commission [2009] PGNC 98; N3720

Legislation:

Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004
Higher Education (General Provisions) (Amendment) Act 2020
National Agricultural Research Institute Act 1996

Counsel:	

Ms. Elizabeth Ngomba, for the Plaintiffs
Mr. Kevin Kipongi, for the Defendants

10th June, 2022

1.	TAMADE, AJ:  The Plaintiffs are seeking to judicially review the decision of the First Defendant in which the Plaintiffs say the First Defendant as Minister for Sports, Higher Education, Research, Science and Technology refused to perform his statutory duty pursuant to Section 10(5) of the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004 in failing to make a submission to the National Executive Council (NEC) for its’ consideration for the appointment of the Plaintiffs to be members of the National Agriculture Research Institute Council.

2.	The Plaintiffs were granted leave for judicial review on 21 September 2021.

3.	Mr. Jospeh Tenge Tomerop, Ms. Agnes Merep, and Mrs. Lanieth Aua were recommended as nominees for the position as non-ex officio members of the NARI Council on 20 February 2020 by the then Minister Honourable Mr. Nick Kuman under Section 10(3) of the Regulatory Statutory Authorities (Appointment to Certain Officers) Act 2004.

4.	Ms. Agnes Merep represented the Growers Association, Mrs. Lanieth Aua represented the Smallholder Women Farmers of the NGI Region, Mr. Joseph Tenge Tomerop represented the Smallholder Farmers of the Highlands Region and Professor Chalapan Kaluwin represented the University of Papua New Guinea as the Chairman of the NARI Council previously.

5.	Ms. Agnes Merep, Mrs. Lanieth Aua, and Mr. Joseph Tenge Tomerop had their terms ending on 14 July 2019 however they stayed on in the Council waiting for the substantive appointments to be confirmed for the new Council Members. It is the claim for Ms. Merep, Mrs. Aua, and Mr. Tomerop that they were nominated to be on the NARI Council, and on 18 March 2020, the Public Service Commission gave clearance that they were fit and proper persons for the appointments and lodged a submission with the Minister to forward to the National Executive Council for appointment by the NEC but the Minister has not made a submission to the  NEC to recommend these Plaintiffs for appointments as members of the NARI Council. 

6.	Professor Chalapan Kaluwin as the other Plaintiff on the other hand was the Chairman of the NARI Council however, he represented the University of PNG and was the Acting Dean of the School of Natural and Physical Sciences Faculty from 2016 to March 2021 and was also the Head of the Environmental Sciences Department. He was the Chairman of the NARI Council however his term expired on 1 February 2021.

7.	Professor Chalapan Kaluwin’s claim is that he was approved by the UPNG Council to be reappointed as a member of the NARI Council for another term and his nomination was given to the Minister to be submitted to the Public Service Commission for their consideration as a fit and proper person for the appointment however he claims that the Minister never submitted his name to the Public Service Commission to be considered as a fit and proper person to be appointed as a member of the NARI Council.
8.	The Plaintiffs’ claim that it has come to their knowledge in December 2020, the Honourable Minister Mr Wesley Raminai was appointed as Minister responsible for Sports, Higher Education, Research, Science and Technology. In a National Gazette Publication No. G177 of 2021, the Minister appointed a new interim Council of NARI which does not include the Plaintiffs. The Plaintiffs, therefore, claim that the previous Minister, the Honourable Mr. Nick Kuman had initiated the process for them through to the Public Service Commission however the new Minister, the Honourable Mr. Wesley Raminai has decided to appoint an interim council pursuant to Section (152) (3) (c) of the Higher Education (General Provisions) (Amendment) Act 2020.

9.	The Plaintiffs are therefore seeking reliefs in the nature of mandamus to compel the Minister to submit their names for recommendation to the NEC for appointment to the NARI Council and as for Professor Chalapan, that the Minister submits his name to the Public Service Commission for consideration as a fit and proper person to be a member of the NARI Council. 

10.	The Plaintiffs also seek an injunction that the Minister be refrained from applying the Higher Education (General Provisions) (Amendment) Act 2020 when exercising his powers in the appointment of the NARI Council members.

Composition of the NARI Council 

11.	Section 7 of the National Agricultural Research Institute Act 1996 states that:

“ 7. MEMBERSHIP OF THE COUNCIL.
(1) The Council shall consist of–

(a) the Departmental Head of the Department responsible for agricultural and livestock matters, or his nominee, ex officio; and
(b) the Departmental Head of the Department responsible for finance matters, or his nominee, ex officio; and
(c) the Director-General, ex officio; and
(d) one member representing the Papua New Guinea University of Technology nominated by that University; and
(e) one member representing the University of Papua New Guinea nominated by that University; and
(f) three members, all of whom shall be smallholder farmers and at least one of whom shall be a woman, nominated by the Minister; and
(g) one member representing growers’ associations, nominated by a legally recognised growers’ association.

2) The members referred to in Subsection (1)(d), (e), (f), and (g)–

(a) shall be appointed in accordance with the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004; and
(b) shall hold office for a term not exceeding three years; and
(c) shall hold office on such terms and conditions as are determined under the Boards (Fee and Allowances) Act 1955; and
(d) are eligible for reappointment; and
(e) shall be ordinarily resident in the country.

(3) Subject to Section 11, where the body concerned referred to in Subsection (1)(d), (e), (f), or (g) fails to submit to the Minister a nominee for a vacant office, the Minister may appoint any person he considers suitable to represent that body without further reference to that body”.

12.	Section 7(2)(a) of the NARI Act, therefore, states that the appointment of the Council Members of NARI shall be according to the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004.

13.	Section 10 of the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004 is in the following terms:

(1)	Where, in relation to a Regulatory Statutory Authority, an appointment of a member of the Board, other than an ex officio member, is required to be made in accordance with the Act or other instrument of incorporation under which the Regulatory Statutory Authority is established, the appointment shall be made, notwithstanding any provisions to the contrary, by the Head of State, acting on advice.

(2)	Where an appointment to which Subsection (1) applies is to be made, the Minister shall –

(a) prepare a list of candidates for the office; and submit the list to the Public Services Commission for its consideration.
(b) submit the list to the Public Services Commission for its consideration.

(3)	Where, under an Act or other instrument of incorporation, an appointment to an office to which Subsection (1) applies is to be made to represent a particular group, the Minister shall, prior to submitting a list to the Public Services Commission under Subsection (2)(b) –

(a) carry out genuine consultations with the particular group concerned on its proposed nominees for the office; and
(b) from the consultations made, compile a summary of the nominees made by the interest group, for submission to the Public Services Commission for its consideration.

(4)	On the receipt of a list under Subsection (2)(b), the Public Services Commission shall consider whether each applicant satisfies a “fit and proper person criteria” based on the following: –

(a)	whether the person is a fit and proper person to hold the particular office; and
(b)	whether the person is competent and of sound judgement to fulfil the responsibilities of that office; and
(c)	 whether he is a person whose previous conduct and activities in business or financial matters is not in question and, in particular, that he may not have –

(i)	committed an offence involving fraud or other dishonesty or violence; or
(ii)	 been engaged in or been associated with any financial loss due to dishonesty, incompetence or malpractice; or
(iii)	been engaged in any business practices appearing to be deceitful or oppressive or otherwise improper (whether unlawful or not) or which otherwise reflect discredit on his conduct; or
(iv)	engaged in or been associated with any other business practices or otherwise conducted himself in such a way as to cast doubt on his competence and soundness of judgement,

and shall make appropriate recommendations and advice on appointment to the Minister.

(5)	On the receipt of the advice of the Public Services Commission under Subsection (5), the Minister shall make a submission on appointment to the National Executive Council for its consideration.

(6)	In the event that the National Executive Council approves the recommendation of the Minister under Subsection (6), it shall advise the Head of State to make an appointment of a non ex officio member of the Board of the Statutory Regulatory Authority.

14.	The Plaintiffs being Mr. Tomerop, Ms. Jonah and Mrs. Aua, therefore, state that their appointments were done pursuant to Section 10 of the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004 however the Minister has stopped short of complying with Section 10(5) of the Act by failing to submit their names to the NEC for their appointment as NARI Council Members.

15.	Professor Chalapan Kaluwin however claims that the Minister has stopped short of not submitting his name to the Public Service Commission as per Section 10(2) of the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004.

16.	Under Section 10 of the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004, the Plaintiffs submit that:

a)	The Minister shall carry out consultations with the particular group concerned and its proposed nominees for the Office and compile a summary of the nominees for submission to the Public Service Commission 
b)	The Public Service Commission will then consider whether each applicant satisfies a fit and proper person criterion and shall make recommendations and advice on the appointment to the Minister
c)	If the NEC approves, it shall advise the Head of State to make an appointment.

17.	The State through the Office of the Solicitor General however argues that the Minister concerned has decided that a new interim Council be appointed on allegations of impropriety on previous Council members. The State submitted that the Minister has a discretion whether to act on the recommendation of the Public Service Commission or not and he has exercised that discretion accordingly. The State submitted at the hearing that the Minister is a member of the NEC, and he has exercised that discretion as a member of the NEC. There is however no affidavit evidence by the State to support their submissions however the submissions on the law as to the Minister’s exercise of powers are important for the Court to consider.

18.	The Plaintiffs, therefore, state that the Minister has not yet complied with the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004 and has installed an interim Council. The Plaintiffs implore the Court to find that the Minister should act expeditiously as though the subject legislation does not provide a time limit for the Minister to Act, under Section 12 of the Interpretation Act 1075, the Minister should act with “all convenient speed”.  

Has the Minister acted ultra vires his powers under section 10 of the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004?

19.	I revisit the evidence of the Gazettal Notice No. G177 of 2021 in which the Minister appointed an interim Council of the NARI and note that the Minister appointed the Interim Council under Section 152 (3) (c) and (e) of the Higher Education (General Provisions) (Amendment) Act 2020. Those provisions expressly state that where the Minister is satisfied that the subject institution is negligently mismanaged, is in financial disarray, and or has not properly carried out its duties amongst other reasons, the Minister may in the best interest of the institution appoint an interim governing body, including an Acting Chief Executive Officer in exercising general supervision and control over the affairs of the institution.

20.	The Plaintiffs claim that they have a legitimate expectation that they will be appointed to those positions as Council Members of NARI. The Plaintiffs rely on the case of National Capital District Interim Commission v Crusoe Pty Ltd [1993] PNGLR 139 where the Court stated that:

Typically, a legitimate expectation arises, as in migration cases, where a government authority, by its words, leads an individual into believing there is a reasonable basis that some forthcoming act will eventuate; for example, the extension to a foreigner of a right to reside in a country, or conferring on a prisoner a remission from sentence.

“…But if a legitimate expectation can be said to arise where an authority has promised a certain cause of action, there would be no reason why an expectation could not arise by default, by omission, if as a result of the default or omission, the party relying on the default or omission could have reasonably expected that it would get what it wanted and it acted openly in a manner consistent with that expectation, and the authority was aware or should have been aware of that conduct. Such a rule is both appropriate and applicable to the circumstances of Papua New Guinea because of the notoriety of inefficiency within the public sector, which can so often damage individual rights, but it needs to be administered with good conscience, equity, fairness, reasonableness, and justice.”

21.	The Plaintiff’s further states that as the only nominees who have gone through the process and or should be processed under Section 10 of the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004, they have a legitimate expectation that they will be so appointed and that the Minister’s failure in failing to accord them the due process under Section 10 of the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004 in a timely manner is a breach of natural justice to them based on the principle of legitimate expectation. 

22.	The Plaintiffs rely also on the case of Barrick (Niugini) Ltd v Nekital [2020] PGNC 180; N8409 (5 June 2020) where the Court stated that:

“The principle of natural justice has two components. The first is to accord a person who stands to be affected by a decision a real opportunity to be heard in a procedurally fair process. The second is a requirement for the decision-maker to provide reasons for his decision.”

23.	The Plaintiffs, therefore, state that whilst waiting for their appointment, the Minister circumvented the process under Section 10 of the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004 and appointed an interim Council pursuant to the Higher Education (General Provisions) (Amendment) Act 2020. 

24.	The Plaintiffs have sought that the Minister failed in his statutory obligation for more than 16 months in not completing the process in the Plaintiffs appointment as Council Members of NARI. 

25.	The ground of when an authority acts ultra vires its powers is when the decision-making authority acts beyond its powers (see SCR NO 1 of 1990; Re Recount of Votes [1990] PNGLR 441).

26.	I am minded to ask this question whether the Minister acted beyond his powers when he abandoned the process under Section 10 of the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004 which involved the Plaintiffs and instead decided to appoint an interim Council and an Acting CEO pursuant Section 152 (3) (c) and (e) of the Higher Education (General Provisions) (Amendment) Act 2020? 

27.	The Plaintiffs have therefore stated that the Minister has not provided reasons for following Section 152 (3) (c) and (e) of the Higher Education (General Provisions) (Amendment) Act 2020 instead of Section 10 of the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004.

28.	The Plaintiffs rely on the cases of Dopsie v Tetaga, Chairman, Public Services Commission [2009] PGNC 98; N3720 (17 June 2009) where the Court said this in relation to the Wednesbury principle that:

“The argument that an administrative decision is unreasonable under the Wednesbury principles is based on the principles laid down in the classic case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. The test to apply is:

is the decision that has been made so unreasonable or absurd, having regard to all the circumstances, that no reasonable decision-maker would have made the decision? (Paul Saboko v Commissioner of Police (2006) N2975.)

10. If the answer is yes, the decision involves an error of law, the decision-maker will have exceeded its jurisdiction and the decision is susceptible to judicial review. If the answer is no, there is no error of law, no excess of jurisdiction, and this ground of review will fail. The decision will be lawful unless it is infected by some other error of law or procedure.”

29.	In answering the question of whether the Minister acted ultra vires his powers in his decision not to complete the process under Section 10 of the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004 and instead of making a decision to appoint an interim Council and an Acting CEO under Section 152 (3) (c) and ( e) of the Higher Education (General Provisions) ( Amendment) Act 2020, I am of the view that the Minister had that discretion to do so and he exercised that accordingly.  The full script of Section 152 of the Higher Education (General Provisions) (Amendment) Act 2020 is as set out below:

"152. STATE INTERVENTION UNDER SPECIFIC CIRCUMSTANCES.

(1) Where, in the opinion of the Departmental Head, a public higher education institution under this Act, including a public university, is -

(a)	being so negligently, inefficiently or badly conducted as not to be in the interests of higher education institutions in the country; or
(b)	in financial difficulty due to gross mismanagement; or
(c)	unable to perform its functions effectively due to dissention among members of the governing body; or
(d)	unable to resolve a student revolt or strike within a reasonable period and that the strike or revolt results in or is likely to result in

(i)	injury or death of a person; or
(ii)	the destruction of a public property, other than minor damages; or
(iii)	a serious threat to the public; or

(e)	unable to resolve a staff revolt or strike and that the revolt or strike results or is likely to result in -

(i)	the institution not discharging its duties imposed on it by or under this Act or any other law relating to higher education or university matters; or
(ii)	an unprecedent academic staff resignation; or
(iii)	injury or death of a person; or
(iv)	the destruction of public property other than minor damages.
(v)	a serious threat to the public.

(f)	not properly carrying out the duties imposed on it by or under this Act or any other law relating to higher education or university matters, the Departmental Head may advise the Minister and the Minister may direct the governing body or administration of the institution to provide a report describing the nature of the problem and the measures the institution has taken or is taking to resolve it.

(2)  Where the governing body or administration of an institution fails to provide the report to the satisfaction of the Minister within a time prescribed in the direction, the Minister must, in consultation with the Departmental Head, take appropriate actions or measures that are necessary as appears to be best calculated to promote the interest of the institution.

(3)  The Minister may, in the best interest of the institution referred to in Subsection (2), exercise one or more of the following powers:

(a)	appoint an independent arbitrator to resolve the issue; or
(b)	revoke or suspend the membership of the governing body; or
(c)	appoint an interim governing body; or
(d)	suspend the Chief Executive Officer; or
(e)	appoint an acting Chief Executive Officer as the interim academic and administrative head of the institution to exercise general supervision and control over the affairs of the institution.

(4) Any interim arrangements invoked under Subsection (3) must remain in place until the Minister is satisfied that the issue giving rise to the intervention has been resolved.

(5) The Minister may, upon resolution of the issue giving rise to the intervention -

(a)	in the case of a suspension, reinstate the original governing body or Chief Executive Officer; or
(b)	in the case of a revocation, direct the institution to appoint a new governing body or Chief Executive Officer (as the case may be) in accordance with this Act or any other legislation governing the institution.".

30.	The National Agriculture Research Institute clearly falls under the Higher Education (General Provisions) Act 2014 in which the legislation amongst its other focus aims to promote the coordination, planning, management, and monitoring of research.

31.	In any of the circumstances under Section 152(1) of the Higher Education (General Provisions) Act 2014 exists for example the institution is being so negligently, inefficiently, or badly conducted as not to be in the interests of higher education institutions in the country or there is financial difficulty due to gross mismanagement, etc, the Minister has the discretion under Section 152(3) to appoint an interim governing body and an Acting CEO.

32.	I am therefore of the view that the decision of the Minister has to be seen in light of the full context of Section 152 of the Higher Education (General Provisions) Act 2014 to understand the brevity of it. To my mind, it is a decision in the best interest of the NARI as a higher institution. The Plaintiffs rights if any as Council Members are subject to the overall interest of the institution as a whole. 

33.	The Plaintiffs claim that they have a legitimate expectation as they were nominated by the small-holder farmers and or the grower associations, and UPNG and therefore there was some promised cause of action by the authority is misconceived to my mind. On submissions of their nominations to the Public Service Commissions, they were still in the screening process and at the discretion of the Minister to recommend them to the NEC and as is applicable to the case of Professor Chalapan Kaluwin in submitting his name to the Public Service Commission, the Minister in both situations whether to comply with submitting the names of Mr. Tomerop, Ms. Jonah and or Mrs. Aua to the NEC, the Minister has a clear discretion to halt that process and invoke the process under the Higher Education (General Provisions) Act 2014  in any one of those situations where the NARI institute has to go into an interim care-taker management, the Minister clearly has a statutory power to appoint an interim care-taker Council.

34.	I refuse the submissions as to legitimate expectation creating a claim for natural justice as the facts of this case do not fall within the meaning of cases within legitimate expectation as is submitted by the Plaintiff. I find that the concerned authority never gave any promised cause of action to the Plaintiff to create a legitimate expectation that would warrant a right to be fairly heard, there was no promised cause of action and therefore I find no legitimate expectation in these facts of this case.

35.	Let me also say that the Plaintiffs are non-ex officio nominees representing an interested group and representing the UPNG as an institution, they are not being appointed on their personal merit to the Council per se as in directors of boards of companies, and therefore their interest-only stem from the organization or institution they represent. Their credibility and credentials as persons sitting on the Council are therefore subject to the process of appointment and or removal and or refusal to appoint or be overlooked under the relevant legislation on grounds within the correct exercise of discretion of the authority concerned.

36.	I, therefore, find that the First Defendant as the concerned Minister did not act ultra vires or beyond his powers and or his decision is not far-fetched and or did not take into account irrelevant considerations. I find that the Minister acted lawfully pursuant to Section 152 of the Higher Education (General Provisions) Act 2014 in the best interest of the National Agriculture and Research Institute and that the Plaintiffs claim therefore must fail in this regard.

37.	I, therefore, make the following orders:

i)	The Plaintiffs claims in OS (JR) No. 97,99,101 & 102 of 2021are therefore dismissed in its entirety. 

ii)	The Plaintiffs shall meet the costs of the State to be taxed if not agreed.

Orders accordingly.
________________________________________________________________
Tamutai Lawyers:  Lawyers for the Plaintiff 	
Office of the Solicitor General:  Lawyers for the Defendants