SC2507

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 18 OF 2022

BETWEEN:
JOSEPH TENGE TOMEROP, AGNES MEREP (alias AMBEN) JONAH, LANIETH AUA and PROFESSOR CHALAPAN KALUWIN
in their capacity as recommended nominees to be Members of the National Agricultural Research Institute Council
First, Second, Third and Fourth Appellants

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

AND:
PUBLIC SERVICE COMMISSION
Second Respondent

AND:
NATIONAL EXECUTIVE COUNCIL
Third Respondent

AND:
THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Fourth Respondent

Waigani: Hartshorn J, Murray J, Miviri J
2023: 29th June, 5th October

SUPREME COURT – Appeal - National Court decision subject of appeal were applications seeking to judicially review decision of first respondent Minister not to perform his statutory duty pursuant to s. 10(5) Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004 (RSA Act) and the National Agricultural Research Institute Act 1996 (NARI Act) to make submissions to National Executive Council (NEC) and the Public Service Commission (PSC) in respect of fourth appellant, for consideration of the appellants for appointment as members of the National Agricultural Research Institute Council (NARIC) – whether the first respondent Minister had the discretion not to complete the process under the RSA Act and NARI Act and had the discretion to decide to appoint an interim council and an acting chief executive officer of the National Agricultural Research Institute (NARI) under s. 152(3)(c) and (e) HEGP Act – whether NARI falls within the definition of “public higher education institution” as per s. 152 HEGP Act – NARI does not fall within s152 HEGP – s152 HEGP cannot be relied upon in respect of NARI -  the extent that the primary judge found otherwise, the primary judge respectfully, fell into error – appeal upheld

Counsel:

Ms. E. Ngomba, for the Appellants

5th October 2023

1. BY THE COURT: This is a decision on an appeal from the National Court which dismissed the four claims of the plaintiffs, now appellants.

2. The court permitted the hearing of the appeal to proceed in the absence of the respondents as we were satisfied that the respondents had been served and that the lawyers for those respondents in respect of whom an appearance had been filed were aware of the date and time of the hearing of the appeal.

3. The four claims of the plaintiffs’ which were dismissed in the National Court were applications seeking to judicially review a decision of the first respondent Minister not to perform his statutory duty pursuant to s. 10(5) Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004 (RSA Act) and the National Agricultural Research Institute Act 1996 (NARI Act) to make submissions to the National Executive Council (NEC) and the Public Service Commission (PSC) in respect of the fourth appellant, for consideration of the appellants for appointment as members of the National Agricultural Research Institute Council (NARIC).

Background

4. The appellants were all serving as ex-officio members of NARIC and had been recommended for reappointment to NARIC by the respective organisations which they individually represented.

5. It is common ground that the first respondent Minister purportedly invoked s. 152(3) (c) and (e) Higher Education (General Provisions) Amendment Act 2020 (HEGP Act) to appoint other persons to be members of an Interim NARIC.

6. The primary judge found amongst others, that the first respondent Minister had the discretion not to complete the process under the RSA Act and NARI Act and had the discretion to decide to appoint an interim council and an acting chief executive officer of the National Agricultural Research Institute (NARI) under s. 152(3)(c) and (e) HEGP Act.

7. In essence, this is the finding of the primary judge with which the appellants take issue. They contended that the primary judge fell into error in her finding and contend that the appointment of members of NARIC must be made under s. 10 RSA Act and s. 7(2) NARI Act. The HEGP Act does not apply and to the extent that the primary judge found otherwise, Her Honour fell into error, the appellants contend.

8. From a perusal of s. 152 HEGP Act, relied upon by the first respondent Minister, that section applies to a public higher education institution. The appellants submit that:

“4.2.4	The definition of a public higher education institution under Section 2 of the HEGPA Act as amended reads as follows:
“public higher education institution” means-
  (a) a State-owned institution; or
  (b) an agency institution;”

4.2.5	A State-owned institution under Section 2 of the HEGPA Act as amended means:
“State-owned institution” means a higher education institution established and owned by the State and registered under Part VI;

4.2.6	NARI is a State -owned institution established under Section 2 of the NARI Act but is not registered under Part VI of the HEGPA Act as amended. Section 27 of the HEGPA Act as amended provides for a higher education institution to register where-
(a) it intends to operate in PNG; or
(b) it intends to offer a programme of study leading to a higher education award; or
(c) it intends to merge two or more registered higher education institutions into one higher education institution.

4.2.7	NARI does not fall under any of these categories defined under Section 27 and so is not registered under Part VI of the HEGPA Act as amended.

4.2.8	Further, NARI does not come under the definition of “an agency institution” as defined under the HEGPA Act as amended. An “an agency institution” under Section 2 of the HEGPA Act as amended means:
“agency institution” means a higher education institution-
(a) that is owned, operated or administered by an education agency; and
(b) that receives more than 50% of its annual funding from the State.”

4.2.9	Although NARI receives more than 50% of its annual funding from the State, it is not owned, operated or administered by an education agency. It is owned by the State and is operated and administered by the NARI Council established under the NARI Act. Therefore, it is not an agency institution under the HEGPA Act as amended.

4.2.10	Ultimately, NARI does not come within the definition of “public higher education institution” under the HEGPA Act as amended and so Section 152 of the HEGPA Act as amended does not apply to NARI. Thus, the learned trial judge erred when she held that NARI falls under the public higher education institution and the Minister exercised his discretion when invoking Section 152 (3) (c) and (e) of the HEGPA Act as amended to appoint an interim governing body and an acting Chief Executive Officer of NARI”

9. From a perusal of the HEGP Act and the NARI Act, we concur with the submissions of the appellants. Clearly NARI does not fall within the definition of “public higher education institution” and so s. 152 HEGP Act cannot be relied upon in respect of NARI. To the extent that the primary judge found otherwise, the primary judge respectfully, fell into error.

10. From a perusal of s. 7(2) NARI Act and s. 10 RSA Act, these are the sections of these respective statutes which provide for the appointment of members of NARIC.

11. Further, from the evidence before the primary judge, the process for the appointment of the first, second and third appellants as non-ex officio members of NARIC as provided in s. 10 RSA Act has been complied with. The PSC had made recommendations to the first respondent Minister that the first, second and third appellants were fit and proper persons for appointment as members to NARIC and that a submission be made to NEC for its consideration for their appointment.

12. As to the fourth appellant, he had been nominated by the University of PNG Council for reappointment. This nomination had been submitted to the first respondent Minister for him to prepare a list of candidates and submit the list to PSC for its consideration.

13. That the first respondent Minister did not make a submission in respect of the first, second and third appellants to the NEC pursuant to s. 10(5) RSA Act and did not make a submission to the PSC in respect of the fourth appellant is in evidence and acknowledged by counsel for the first respondent Minister in the National Court proceedings.

14. From a perusal of s. 10(5) and s. 10(2) RSA Act, the first respondent Minister does not have a discretion as to whether the respective submissions will be made. The word “shall” makes it mandatory for the first respondent Minister to make the respective submissions. Consequently, we are satisfied that the appellants have properly and satisfactorily made out that they are entitled to the relief which they seek.

Orders

15.     The Court orders that:

a)	The appeal is upheld.

b)	The orders of the National Court made on 10th June 2022 are quashed.

c)	It is declared that the National Agricultural Research Institute Council members are appointed under section 7(2) National Agricultural Research Institute Act (NARI Act) and section 10 Regulatory Statutory Authorities (Appointment to Certain Offices) Act (RSA Act) and not under section 152(3) (c) Higher Education (General Provisions) Act (HEGP Act).

d)	An order in the Nature of Mandamus is issued that pursuant to section 7(2) NARI Act and section 10(5) RSA Act, the first respondent shall make a submission to the National Executive Council within 14 days from the date of service of this Order for its consideration of Mr. Joseph Tenge Tomerop, Mrs. Agnes Merep (alias Amben) Jonah and Mrs. Lanieth Aua to be appointed as members of the National Agricultural Research Institute Council.

e)	An order in the Nature of Mandamus is issued that pursuant to section 7(2) NARI Act and section 10(2) RSA Act, the first respondent shall submit a list to the Public Services Commission within 14 days from the date of service of this order for its consideration of Professor Chalapan Kaluwin as a fit and proper person to be a member of the National Agricultural Research Institute Council.

f)	A Permanent Injunction is issued restraining the first respondent from applying the HEGP Act when exercising his ministerial powers when dealing with the National Agricultural Research Institute and the appointment of its Council members and the director-general of the National Agricultural Research Institute.

g)	The respondent shall pay the costs of the appellants of and incidental to the National Court proceedings from which this appeal emanates and the costs of the appellants of and incidental to this appeal.
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Tamutai Lawyers: Lawyers for the Appellants                                                    
Solicitor General: Lawyers for the First, Third and Fourth Respondents