National Court of Papua New Guinea

“2 &#T60; Acis ppl as toeall oall officers, employees and all other persons otherwise employed or engaged under this Act whether inside or outside Papua New Guinea.&;

That section reads:

“51 < & Age of Retirement

>

(1) &ـ Subjectbject to thto this section as officer who has attained the age of 50 is entitled to retire from thlic Se if sireso so,such an officer mayr may, sub, subject ject to this Act, continue in the Public Slic Servicervice until he attains the age 60.

(2) &#16 officer who continues nues in the Public Service after he has attained the age at which he is entitled to retire:

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

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

(3) ;&#16ement underunder subs subs (2) (a) shall be effected by the Departmental Head of the Department ofnt of Personnel Management.”

Further argumen advathat ppointment is also contrary to the Nati National onal ExecuExecutive 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 Coutiotution 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 honsulted the Public Service Commission before tendering advg advice to the Head of the State.

That has been done. The gal of the appointmenttment clearly states that these procedures have been followed. Thus this apment cannot beot be questio#160; The Defendants argued that the Constitutional authority to appoint places no boundarindaries or conditions on who may be appoin#160; Accordingly it can be safely said that any person then the NEC considers suitable can be appointed. Such persons’ qicatiications, status, age etc are matters solely for the NEC to consider.

In any case, notwithstanding provisions in theic Service (Management) Act 1986 requiring retirement of officers within the service at aget 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 sai separate fote form of appointment of Departmental Heads as opposed to ordinary officers of the Public Service is also significaupporting the submission that Departmental Heads are not “officers” of the Publ 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 isough s. 25B the Acte 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 pes fominationation from them the Public Service when his contract expires.

Mr Bray for Mr Lucas the 3rd Defendant supported thmissions of Mr Griffin. He poino what he called thed the evolution of the Public Serv Service from an organisation where staff held long term tenure to a present day Service requiring greater accountability evidenced by appointments on contract. Now Depatal Heads and Seni Senior Management officers my be appointed under contract. He argued that toe restricstriction on the Nwer to appoint under contract was in effect imposing restrictions on its legal capacity to y to contract and or its ability to delivecontracts it enters into.

He also pointed out that 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. &##160; APPOINTPOINTMENTS TT CEROFIN OFFICES

(1) ټ This seis section applies to and in respect of the following offind pons:(a) ټ&#all all all offi offices in the National Public Servicervice thee the occupants of which are directly responsib the nal Eive Council ncil or to a Minister; and

(3) & All apll appointpointmenttments (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 Pment he pu of this subs subsectisection, son, 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 poli

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 thointment be limi limited to those persons who meet the criteria of the Public Service (Management) Act 1986. In particular it in to theo the NEC to adviseappointment of a person over the age of 60 years to a post post of Departmental Head? The answer to must be foun found by examin of the Constitutional provisions and the Statute itself.

Section 193 of the Constitution establishes the power of appoit in the Head of State acting on advice. From that seat sectionan bcan be noted that a Departmental Head reports to the NEC or a Minister. The office of Deparal Head Head can also be seen to be one “prescribed by an Act of the Parliament󈮐 Sections 24 and 25 in t in the Act provide for the appointment of Departmental Heads. They do limore than reaffieaffirm the Constitutional provisions of s. 193.

The Public Service (Management) Amendment Act 1988 introduced contracts of employment foartmental Heads. Section 2 of tct provided ided supplsupplementary sections 25 A, B, C and D to the principal Act to implement that purpose. Those sections re follows:lows:

“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.ټ CONTRACTS OF EMPLOYMENT

(1) & A 0;parteental Head shallshall be employed under, and shall hold office in accordance with the terms and conditions of, a contract of employment with the State.

(2) &##160;&##160;ntracemploymeloyment uent under nder SubseSubsection (1) shall be executed by the Head of State, acting on advice, on behalf of the State, and by thartmental Head.

25C. ټ EMPLOYMENT UNNT UNDT UNDER CONTRACT TO CONSTITUTE SERVICE

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

25D. CESSATION PLOYMENT IN PUBL PUBLIC SERVICE

A person who is appointed to be a Departmental Head and accordingly enters into a contracemplo undes division, shall, on the termination of his employment in accordance wnce with tith the cohe 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 s being eing 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 tmental Head does not stot stand outside the Public Service. Anh appointment is one made made to a post within the organisation that is the Public Service0; The contract entered into (declared to be made under ther 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 ontract goet goes on to acknowledge that the provisions of the Public Service (Management) Act 1986 determine the mode of employment as a Public Servant and tha standard terms and conditions for employment of Departmenttmental 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 apply to permanent officers”.

Under this Act 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 defon sectioection of the Act is not helpful (‘officer’ is an officer in the Public Service) it does not exclude a Depatal Head from being an ‘officer’. Section 2 says the “8220;Act appl applies to all officers employees and all other persons engaged under this Act”. Under that definiMr Lucas ucas must be at least a “person otherwise en”. But s. 25D shows tows that Departmental Head employed under contract must be an officer, for he ceases to be one when his cot is terminated. Section 52on 52(1) which deals with retirement of Departmental Heads also refers to them as ‘officers’.

That section reads:

52. REENT ON ACCOUNT OF INFIRMNFIRMITY OR INCAPACITY

(1) &#1f a Departmental Head apad appears to the Head of State, acting on advice, after full investigation of the cstancp>

(b) &##160; to have have ceae c ased tsed to havo 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,

Opposing that is the direct statements of s. 25C and of s. 2. ese the Act and therefore fore subs 51 applies to all persons employed under the Act. I would aat s. 51 is not jnot just arement provision for officers of ‘other ranks’. It has afold purposerpose pose that provides for all or any officeretire if he desires at age 50 and requires retirement of agof age 60.

Section 52 states that Head of State may retire on offico has become legally disquaisqualified 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 legal retirement age. The use e word ‘may6;may6;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 lik/p>.

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

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

“38A. DESIGNATION OF SENIOR MMENGEMENT OFFICES

(1) ҈ The Mine Minister may, putsuant to a directive of the National Executive Council, by notice in the National Gazette, designate an office, thanfficeepartmental Head created under s 21, as a se a senior management office and the provisrovisions ions 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 , actn advor

(b)&#16) <;¦ the Depa Departmental Head of the Department of Personnel Management,

and an appoit sha madeccordwith Act.

(3) d< &160;&#160 #160;&#1 pe Aon to be appoiappointed to a to a seniosenior management office shall:

(a)ـ & be aicer of thof the Publ Public Service; or

(b) ـ subject ject to subo subsection (4) by virtue s appent become on office of the Public Service.

(4) & A60; A p;rson referreferred to in subs (3) (b) sonly point he is e is eligieligible fble for appointment to the Public Service as otherwise required by this Act.”

Notwithstandingment this e a referencerence to e to qualiqualification 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 is the intention ofon of Parliament it is directly contrary to General Orders. These take statuauthority rity from s. 53 of the Act and reflect the policy decisions of the NEC itself (53. Ge Orders (O.1 (O.11.29) s29) states that the same conditions in respect of retirement age apply to Departmental Heads as to otheranent officers.

In the interpretation of statutes it is often appropriate to look atok at other comparable statutes. Whe provisions regarding aing age are examined in this Act and other Acts regarding officers engaged is the State Services and govet agencies generally, it can be seen that by statutory provision and through policy in the 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 arelar provisions inns in the Organic Law on the Terms and Conditions of Employment of Judges and the Organic Law on Certain Constitutional Office Holders. Sectioof the Organic Law oLaw on nal Elections imposed retirretirement and prohibited reappointment of the 3rd Defendant as Electoral Commission by reason of age crit Similar provisions appear in Acts relating to the Pohe Police, the Defence Forces and the CIS. Even Statutory Agencies such as the Harbours Board face age restrictions on Board members. Inrast, for consultants nots not directly engaged in the Publrvice itself, there are no such age limits.

Thus through constitutional, statutory aory and policy provisions the conclusion athe intention of Parliamentament 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 do not contravene a statuttatutory provision as to age limits. Of course that section cannot save an appointment invalid from the outset.

It reads:

54. EFFECAPPF NTMEITS BEYOND SOND STATUTORY PERIOD

Where:

(b) a purpoated ntpoit ienmade made for for a pera period tiod 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 admithat Mr Lucas has already attained 60 years his appointment can only be declared to have beee 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: Lawyers