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Koim v O'Neill [2016] PGNC 344; N6558 (2 December 2016)

N6558

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 444 OF 2014

BETWEEN

SAM KOIM, CHAIRMAN OF INVESTIGATION TASK FORCE TEAM SWEEP

Plaintiff

AND

HON. PETER O’NEILL, as PRIME MINISTER & CHAIRMAN OF THE NATIONAL EXECUTIVE COUNCIL
First Defendant

AND

THE NATIONAL EXECUTIVE COUNCIL
Second Defendant

AND

HON. ANO PALA, MINISTER FOR JUSTICE & ATTORNEY-GENERAL
Third Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Defendant

Waigani: Makail, J

2016: 21st October &2ndDecember

JUDICIAL REVIEW – Review of Policy Decision – Decision made by National Executive Council – Decision to disband Anti-Corruption Body – Decision to establish interim Anti-Corruption Office – Task Force Team Sweep – Interim Office for Anti-Corruption –Legal status of Task Force Team Sweep – Legal capacity of – Whether Policy Decisions reviewable – Factors relevant to question of reviewability of Policy Decisions – Non-justifiability of – Source of power of decision-maker – Nature and subject-matter of Policy Decision – Constitution – Section 153 (2)

PRACTICE & PROCEDURE – Objection to competency – Competency of proceedings – Filing of Notice of Motion – Notice of Motion for judicial review – Failure of – Effect of – National Court Rules – Order 16, rule 5

Cases cited:

Papua New Guinea Cases
Alex Timothy v. Hon. Francis Marus&Ors(2014) SC1403
Alois Kingsley Golu v. National Executive Council (2011) N4425
Burns Philip (PNG) Ltd v. The Independent State of Papua New Guinea (1989) N769
Hon. Ano Pala as Minister for Justice and Attorney-General &The State v. Sam Koim&Ors (2015) SC1436 (14th May 2015)
Hon. Peter O’Neill v. Chief Magistrate Nerrie Eliakim&Ors (2016) SC1522
Irabmile Investments Ltd v. Mobil Oil New Guinea Ltd (2015) SC1440
Jacob Kumbu v. Dr. Nicholas Mann & UPNG (2012) N4746
Kekedo v. Burns Philip (PNG) Limited [1988-89] PNGLR 122
Mathew Vingome v. John Diala& UPNG (2014) N5710
Paul Tiensten v. Sam Koim(2011) N4420
Paul Tienstan v. The State (2015) SC1468
Peter Makeng&Ors v. Timbers (PNG) Limited & Ors (2008) N3317
Peter O’Neill v. Chief Magistrate NerrieEliakim&Ors(2016) SC1539
Phillip Isu&Ors v. John Ofoi&Ors(2014) N5518
Piu Land Group Inc v. Sir Michael Somare&The State (2004) N2660
Sam Koim v. Prime Minister Peter O’Neill & Ors (2016) N6198
Sam Koim v. Prime Minister Peter O’Neill & Ors (2014) N5694
Sir Arnold Amet v. Peter Charles Yama (2010) SC1064
Thomas Nen&Ors v. Sir Michael Somare, NEC &Ors: OS (JR) No 156 of 2011 (Unreported and Unnumbered Judgment of 6thNovember 2015)
The State v. Paul Tienstan(2013) N5422
The State v. Paul Tienstan (2014) N5563
Timbani Longai v. Steven Maken&Ors(2008) N4021
Tzen Pacific Limited v. KanawiPouru&Ors (2013) N5156
Yanta Development Association Inc v. Piu Land Group Inc & Ors (2005) SC789

Overseas Cases
Associated Provincial Picture House v. Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223
Attorney-General of Canada v. Inuit Tapirisat of Canada (1980) 115 DLR (3d)1
Council of Civil Service Unions & Ors v. Minister for Civil Service [1985] 1 A.C. 374
CREED NZ Inc v. Governor General [1981] 1 NZLR 172
McGuiness v. New South Wales [2009] NSWSC 40; (2009) 73 NSWLR 104
Minister for Arts, Heritage and Environment v. Peko-Wallsend Ltd [1987] 15 FCR 274
Minister for Immigration and Multicultural Affairs v. Jia (2001) 205 CLR 507
Ridge v. Baldwin [1963] UKHL 2; [1964] A.C. 40
R v. Toohey: Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170
R. (on the application of Niazi) v. Secretary of State for the Home Department [2008] EWCA Civ 755
South Australia v. O’Shea (1987) 163 CLR 378
Whitlam v. Australian Consolidated Press (1985) 73 FLR 414

Other References & Texts:

Mark Findlay “Institutional Response to Corruption: Some Critical Reflections on the I.C.A.C” (1988) 12 Criminal Law Journal, 271

Michael A. Ntumy, Administrative Law of Papua New Guinea, CBS Publishers & Distributors (2ed 2003)

Counsel:
Plaintiff in Person
Mr. M. M. Varitimos QC, for First Defendant
Ms.T. Twivey, for Second Defendant
Mr. N. Tame, for Third & Fourth Defendants

JUDGMENT

2^nd December, 2016

1. MAKAIL J: The Plaintiff, a lawyer by profession commenced these proceedings in his capacity as Chairman of the Investigation Task Force Team Sweep under Order 16 of the National Court Rules.

Introduction

2. He has travelled a long journey since the commencement of the proceedings on 30th June 2014 in his quest to find the answer to the question, why did the Prime Minister and the National Executive Council (“NEC”) disband the Investigation Task Force Team Sweep (“TFS”) headed by him as Chairman and replace it with an Interim Office for Anti-Corruption headed by retired Judge Mr. Graham Ellis?

3. Of course the question is a rhetorical one because it has been answered by the Prime Minister and NEC in the decisions they made. A more fundamental question though, that lingers and needed to be answered is whether the decisions were reached by a process that was fair to the Plaintiff and TFS.

4. In his quest it took the Plaintiff a little over two years to finally reach the end, though at times during the journey it was thought the end was not going to come, the last official engagement itself was of course, the trial, on 21st October 2016 where all parties duly attended.

5. It was not smooth sailing though, for the journey took the Plaintiff through a series of interlocutory applications which he had to defend and which more or less frustrated and contributed to the delay in the trial of the matter, the obvious ones being the Third and Fourth Defendants’ application for leave to appeal to the Supreme Court against the grant of leave by Gavara-Nanu J, First and Second Defendants’ application to have the Plaintiff cited for contempt (“the show cause application”) and the Defendants’ objection to the Plaintiff’s legal representation.

6. The show cause application was commenced by the Prime Minister to have the Plaintiff show cause why he should not be cited for contempt for breaching Gavara-Nanu J’s order of 16th July 2014. It was claimed that the Plaintiff must ‘purge himself’ before he could apply for judicial review. That application was found to be procedurally flawed and was dismissed as being incompetent.

7. A further application was filed and despite the Prime Minister’s insistence that it be heard ahead of the substantive judicial review for the same reason as the previous application, the request was denied. That application is pending and will be heard when the substantive matter is concluded, at the pleasure of the Prime Minister: see Notice of Motion filed by the First Defendant on 2nd March 2016.

8. The last of the application saw the defence team successfully obtaining the Supreme Court’s approval to bar legal representation of Messrs Mathew Damaru and Timothy Gitua. As a matter of precedence and conformity it applied to the Plaintiff as he had retained services of private counsel. As a result, he lost his entitlement to legal representation, and appeared in person and prosecuted the matter at trial.

9. And this is in no way taking away or undermining the Defendants’ right to challenge the grant of leave or bring contempt proceedings. Nor is it a criticism of how this case was handled by the Defendants but simply a reflection and restatement of the obvious – that interlocutrices do have the potential of distracting parties from the core issue (s) and parties must be reminded to stay focussed at all times.

10. And that there may have been some misunderstanding or even misgivings by the Defendants or that they may have formed a particular view along the way not consistent with the Court’s position on how the interlocutory matters should be dealt with but the Court has an inherent obligation (power) and must zealously protect itself from abuse by litigants and keep parties focussed on the real core issue (s) for the purpose of expediting the matter to trial. And this is reflected in the way the interlocutory applications were dealt with.

11. All these applications are well documented and parties can be referred to the published judgments of Hon. Ano Pala as Minister for Justice and Attorney-General & The State v. Sam Koim&Ors (2015) SC1436 (14th May 2015), Sam Koim v. Prime Minister Peter O’Neill & Ors (2016) N6198 and Hon. Peter O’Neill v. Chief Magistrate Nerrie Eliakim&Ors(2016) SC1522 for further edification.

12. Now that is not to say that the Defendants were solely responsible for the delay for apart from the time spent on preparing the Review Book, there were occasions where their counsels were unable to attend the interlocutory hearings for one reason or another, that on one occasion counsel for the NEC was arrested by police for an alleged offence and on other occasions, counsels had prior engagement and adjournment was necessary.

Background Facts

13. The question of fairness of the process whereby the decisions were made took centre stage in these proceedings because of a number of significant events that had occurred between August 2011 and July 2014. These events were not being disputed by the parties and formed the facts pertinent to the dispute. They can shortly be stated thus:

• On 11th August 2011 the NEC made a policy decision to approve the establishment of investigation into certain allegations of corruption and approved a team of members to be involved. The task was to investigate allegations of corruption at the Department of National Planning and Monitoring and extend to other Departments or State agencies with regard to the appropriation of the 2009 to 2011 Development Budget. Among others, was the K125 million for the Kokopo Community Projects and K10 million which were said to be outside the Development Budget.
  
• This saw the establishment of the TFS headed by the Plaintiff, Mr. Koim and comprised of members of State Agencies such as Police officers, lawyers, accountants and officers from the Internal Revenue Commission and so forth.
  
• Mr. Koim, in his capacity as a Principal Legal Officer at the Office of the Solicitor-General in the Department of Justice and Attorney-General was seconded to head the TFS by the Department in August 2011.
  
• Between 14th September 2011 and 27th January 2012 the NEC noted the first monthly report by the TFS and approved further funding including payment of risk, inconvenience and incentive allowances for the members of the TFS, further noted third monthly report and revelation of more “complaints of corruption at all level of government” being lodged with the TFS and approved extension of terms of reference of TFS to include complaints lodged by members of the general public and further funding for accommodation for the Chairman. Funding was provided to meet those requests.
  
• The NEC also approved the establishment of a Permanent office of “Investigation Task-Force Sweep”, the concept of the structure in “principle” and directed the Secretary of the Department of Personnel Management to review and approve the structure forthwith for implementation. The Plaintiff and other support personnel were approved to work in consultation with the Secretary to formulate a policy frame work for the permanent office of the TFS with a funding of K1 million to cover costs of the exercise.
  
• The Plaintiff and the support personnel undertook this task and out of that, a proposed structure was approved by the Central Agencies Coordination Committee (“CCAC”). It was envisioned that the TFS will have a departmental status “that would eventually be subsumed by the creation of the Anti-Corruption Agency proper through a Constitutional amendment.” It is not known what has become of this proposal.
  
• Due to increased workload and need for more staff and resources on 21st February 2013 the NEC approved to direct the Chairman of the TFS to conduct a recruitment exercise forthwith, adopt and further develop the proposed operating guide, which included, amongst other things, criteria for recruitment and terms and conditions of membership. The Chairman developed an operating guide and order for the TFS.
  
• On 5th May 2014 the TFS reported to the Commissioner of Police Sir. Tom Kulunga that there was sufficient evidence to prosecute the Prime Minister for alleged involvement in the fraudulent payment of money to Paul Paraka Lawyers.
  
• The allegation was that the Prime Minister had signed a letter addressed to the Minister for Finance and Treasury, Hon,. Don Polye dated 24^th January 2012 directing payment for outstanding legal costs to Paul Paraka Lawyers.
  
• On 15th May 2014 Commissioner Kulunga was convicted for contempt of Court by the National Court constituted by the Deputy Chief Justice for breaching an order of the National Court to reinstate Mr. Geoffrey Vaki to his former position as Assistant Commissioner of Police.
  
• On 30th May 2014 the Constitutional Amendment (No. 40) (Independent Commission Against Corruption) Law 2014 was certified.
  
• On 12th June 2014 on the direction of Commissioner Kulunga warrant of arrest was obtained for the arrest of the Prime Minister for official corruption under section 87 (2) of the Criminal Code.
  
• On 16th June 2014 Commissioner Kulunga sent a letter to the Prime Minister inviting him to attend an interview with the Police National Fraud and Anti-Corruption Directorate at Konedobu.
  
• The Prime Minister did not attend as it was a belated notice.
  
• On the same date (16th June 2014) the NEC approved to advice the Head of State to revoke the appointment of Commissioner Kulunga as Commissioner of Police and appoint Mr. Vaki as Acting Commissioner of Police. It was, accordingly done.
  
• On 18th June 2014 the NEC, having regard to a policy submission, noted the progress made to establish Independent Commission Against Corruption and approved that the TFS be abolished. It was, accordingly done.(Emphasis added).
  
• On 24th June 2014 the NEC, again having regard to a policy submission, approved the establishment of an Interim Office of Anti-Corruption and appointed Mr. Ellis as Chairman. It was also done. It also directed that all files belonging to the TFS were to be transferred to the Interim Office for Anti-Corruption. (Emphasis added).
  
• On 27th June 2014 the written contract between Mr. Koim and the Department of Justice and Attorney-General, which was for a period of three years commencing on and from 28th June 2011, expired.
  
• On 30th June 2014 Mr. Koim commenced these proceedings.
  
• After commencing proceedings on 8th July 2014 Mr. Koim obtained an ex parte interim stay order until 10th July 2014 when the matter was to be heard inter parte.
  
• On 10th July 2014 the matter was adjourned to 16th July for inter parte hearing.
  
• On 16th July 2014 the matter was heard inter parte before Gavara-Nanu J. His Honour reserved his ruling until 28th July 2014 and further restrained Mr. Koim“from discussing the current proceedings in public including with the media (whether print, electronic, social or otherwise).”
  
• On 28th July 2014 the interim stay order was extended until the determination of the proceedings by Gavara-Nanu J. His Honour’s full reasons for decision can be found in the reported and published judgment, Sam Koim v. Prime Minister Peter O’Neill & Ors (2014) N5694.
  

Grounds of Review

14. The question of fairness of the process is central to the judicial review because it is being alleged that the decisions were made in breach of the principles of natural justice and procedural fairness and secondly, the Prime Minister and NEC were biased and acted in bad faith. Thirdly, the decisions were unreasonableness under the Wednesbury principles of unreasonableness.

Reviewability of Policy Decision

15. These grounds were mooted to invalidate the decisions of the Executive government but seemed to over-look or rather, run parallel with the issue of reviewability of policy decisions raised by the Defendants. The Defendants’ argument was that due to the nature of the body and its place in the executive hierarchy, the scope of judicial review is reduced in respect of decisions taken by the NEC in the sense that Courts have expressed reluctance to interfere with the decision-making body.

16. They said that the question was not trivial but meritorious and one that required proper consideration. I think they are quite right on this last point. To my mind, it is the threshold issue. It is a clear-cut issue which did not warrant a protracted litigation beyond two years to determine it.

Issue(s)

17. The question is, are these policy decisions made by the Executive arm of Government reviewable? The answer is either yes or no. All the other issues raised by the parties do have a place in the review but are secondary. Both sides have extensively covered this issue in their respective submissions and I am indebted to them.

Plaintiff’s Submissions

18. Mr. Koim conceded that the subject decisions were public policy decisions but his argument was that they were reviewable and the Court must have jurisdiction to review them because the National Court is conferred power to review all acts and decisions of subordinate authorities including the NEC pursuant to its inherent power under Section 155 (2), (4) and (5) of the Constitution.

19. He placed reliance on the cases as Kekedo v. Burns Philip (PNG) Limited [1988-89] PNGLR 122 which have held that the exercise of statutory power by the Head of State and the NEC are subject to scrutiny by the Courts by way of judicial review on grounds of excess of power, abuse of power or unreasonableness. And the Court should have jurisdiction to review these policy decisions on these grounds.

20. He said that it may well be that the decisions in question were policy decisions of the NEC but they were of significant public interest and national importance because by these decisions the TFS was abruptly disbanded and its functions transferred to a new Interim Office for Anti-Corruption without any justifiable reasons. They were not made in furtherance of a government policy, though dressed up by the NEC to look as though they were policy decisions made for public good.

21. For that, they must be considered in their wider context because just as one would like to draw a thick line using the principles of separation of powers, one must also not conveniently overlook the reason why such a line has to be drawn in the first place. Governmental power is divided among the three arms of government so that each of them can check the other’s exercise of powers. The principle inherent in every democracy is to prevent the arbitrary use of power.

22. He and the TFS became victims of the arbitrary exercise of power by the NEC because they were not given an opportunity to be heard prior to the decisions. If no such right existed, at the very least, they had a legitimate expectation that they be heard. The expectation is based on the notion that they were appointed as members of the TFS when it was established in 2011 and where the NEC intended to abolish it and have its functions transferred to an Interim Office for Anti-Corruption, they should have been given an opportunity to present their views before decision.

23. He said that the decisions could not have been coincidental at the time when the Prime Minister was being investigated, and moves were made to have him arrested and charged for official corruption for his alleged involvement in the alleged fraudulent payment of monies to Paul Paraka Lawyers. It was a deliberate act and ploy to frustrate and stop the TFS from proceeding with the arrest and charge of the Prime Minister. And based on the turn of events between the months of May and June 2014 and particularly, the investigation and impending arrest of the Prime Minister and time the decisions were made, it is open to the Court to infer and find that the decisions were biased and made in bad faith.

24. The biasness of the decisions cannot be underestimated nor ignored so as the claim that the NEC was driven by bad motive to arrive at the decisions it did. He said in each case, they were apparent, if not, real because the Prime Minister is and was Chairman of the meetings and had exerted pressure or ‘dominating influence’ on the members of the NEC to decide as they did. It is reinforced by the decisions that the “Interim Office for Anti-Corruption will be responsible for coordinating anti-corruption investigations and will report directly to the Prime Minister.”

25. Finally, the decisions were unreasonable under the Wednesbury principles of unreasonableness because the NEC failed to take into account relevant matters such as the TFS had investigated many cases, some of which resulted in successful prosecution whilst others are still pending and should not have disbanded it. The ‘impromptu’ decision to disband it and replaced it with another interim body defied logic and common sense. There was no plausible justification and to date, there was none provided by the Defendants.

26. Public interest was another relevant consideration which was ignored or given no consideration by the NEC, that given the operations of the TFS and what it has been able to achieved in terms of investigation and prosecution of offenders and those suspected of engaging in corrupt practices and conduct, the decisions were so outrages and defied logic and common sense or accepted moral standards that no reasonable person applying his mind to the question to be decided could have arrived at them. It was a factor that far out-weighed the reasons given by the NEC to disband the TFS and justified its establishment and maintenance.

27. Overall these grounds demonstrated an arbitrary exercise of power by the NEC and justified judicial intervention. And based on the case of Council of Civil Service Unions & Ors v. Minister for Civil Service [1985] 1 A.C. 374 the prohibition on judicial review of executive decisions was relaxed substantially in the United Kingdom and that decision was applied in Australia in the Minister for Arts, Heritage and Environment v. Peko-Wallsend Ltd [1987] 15 FCR 274. It was time that Papua New Guinea should follow that course as part of developing the modern law on judicial review to meet the changes that are taking place in this body of law.

28. He said this was an appropriate case for judicial review. He made a final strong plea to the Court to intervene because PNG is a nation of laws, not men and the Court is the guardian of the law. As its guardian, it has and must have authority to watch over the law. If the manner of exercise of the prerogative were to remain immune from judicial scrutiny, then the executive would be tempted whenever possible to rely on the prerogative to achieve its goals, a situation which would threaten the values protected by conformity to the rule of law.

29. He cited as an example of arbitrary exercise of prerogative power a case where the NEC makes a policy decision to abolish the Department of Works and Implementation. The direct consequence would be that there would be no Department of Works and Implementation to undertake capital works projects for the State. In the end the people will be deprived of its services. Such is the reality and enormity of the subject NEC decisions that the Court must not sit back and do nothing but to intervene for the sake of public interest and national importance.

Defendants’ Submissions

30. The Defendants, led by learned counsel for the Prime Minister supported the argument that the NEC decisions were not reviewable by citing the cases of Paul Tiensten v. Sam Koim (2011) N4420 (14th October, 2011) and Alois Kingsley Golu v.National Executive Council (2011) N4425 (21st October, 2011) where it was contended that in these cases, the Court held that the NEC decision to establish the TFS was an executive decision and non-justiciable because it was a policy decision and not made under any law which would make it susceptible to judicial review. Similarly, the decision to disband the TFS and the decision to establish the Interim Office for Anti-Corruption were executive decisions and are non-justiciable. Thus, they were not open to judicial review.

31. Further support was sought from cases from other common law jurisdictions where similar statements have been made as to the inappropriateness of judicial review where policy decisions are made at a high level of the Executive government. In New Zealand the case of CREEDNZ Inc v. Governor General [1981] 1 NZLR 172 was cited as an example and in Australia, the Federal Court of Australia’s decision in Peko-Wallsend Ltd was another example.

32. It was stressed by the Defendants that the decisions were no ordinary decisions where the Court can intervene as its desires, but were made by the executive body comprising of elected representatives and lay in what Bowen CJ described in Peko-Wallsend case as “the political arena”. Thus, it is inappropriate for the Court to review them.

33. Section 153 (2) of the Constitution recognised the separation of powers by the three arms of Government and the appropriateness of judicial review of NEC decisions by unequivocally stating that policy decisions of the NEC are non-justiciable. This is because they do not have prescribed procedures under any Constitutional Law or Act of Parliament and unlike statutory decisions as in cases of appointment and revocation of Departmental Heads and Heads of Statutory Bodies which are governed by statute and which are often subject of judicial review, policy decisions are not. That is why the Courts have been reluctant to interfere with them.

34. As to the claim by Mr. Koim that he was denied natural justice, the Defendants made considerable submissions on this ground. The gist of their submissions was that first where Cabinet (or the NEC) makes decisions of policy or of a political nature, and there is no statute specifying a procedure to be followed in coming to the decision, they will not be under an obligation to observe the principles of natural justice. This is because past decided cases in Papua New Guinea and other common law jurisdictions demonstrated that the correct position was that natural justice was not an available ground of review for decisions of the NEC which have the character of the decisions in question in these proceedings.

35. They pointed out that there is a distinction between a policy decision and a statutory decision. A decision of policy undertaken by Cabinet, or a Cabinet-like body, which involves political judgment is of a different character from administrative or quasi-judicial decisions which are directly pointed at determining the rights of individuals. The Courts will not interfere to quash a decision of broader policy on the basis that the decision was made unfairly. This is even though the decision will undoubtedly affect individuals.

36. The decisions to disband TFS and to establish an Interim Office for Anti-Corruption were made by the NEC. They were decisions taken at a high level of policy as to which institutions and schemes should best be established and maintained in order to deal with potential corruption. Such decision is entrusted to elected representatives. There is no statutory scheme which gave the NEC power to make the decisions which could be construed as imposing a requirement of natural justice on the NEC in exercising the power.

37. They cited the case of Burns Philip (PNG) Ltd v. The Independent State of Papua New Guinea (1989) N769 per Bredmeyer J, the United Kingdom case of Ridge v. Baldwin [1963] UKHL 2; [1964] A.C. 40 per Lord Reid, the Australian cases of McGuiness v. New South Wales [2009] NSWSC 40; (2009) 73 NSWLR 104 per Hall J, South Australia v. O’Shea (1987) 163 CLR 378 per Brennan J and the New Zealand case of CREEDNZ Inc per Cooke J to support the submission that natural justice cannot be attachedto policy decisions of the NEC.

38. Secondly, the fact that individuals may be affected by the decisions does not mean that the NEC was obliged to hear from those affected before it is to make a decision. Policy decisions, by their nature, are likely to ultimately affect individuals. If such obligation were to be imposed it would place a significant and unwieldy burden on the NEC which would be likely to severely curtail its ability to operate effectively. The decisions taken regarding TFS were policy decisions, not decisions made judicially to determine legal rights and obligations of the TFS members. There was no obligation on the NEC to accord the TFS team procedural fairness in making the decision regarding the TFS.

39. They said this case should be distinguished from the case of Thomas Nen&Ors v. Sir Michael Somare, NEC &Ors: OS (JR) No 156 of 2011 (Unreported and UnnumberedJudgment of 6^thNovember 2015) where the Court allowed a review of an NEC decision to revoke the appointment of Special Commissioners to the Special Land Titles Commission on the ground that natural justice had been breached because that case concerned exercise of power regulated by statute. The Commissioners who revocations were the subject of dispute were appointed by the Head of State, on the advice of the NEC, pursuant to Section 6 of the Land Titles Commission Act, 1962 and Section 4 of the Land Disputes Settlement Act, 1975.

40. The argument in response to the ground that the decisions were biased and made in bad faith was that, other than in the case of judges, the rule on bias is derived from and forms part of the requirements of natural justice and procedural fairness. Bias is, therefore, only available as a ground of review in respect of decisions which are subject to the requirements of natural justice. The cases of Burns Philip and Jacob Kumbu v. Dr. Nicholas Mann & UPNG (2012) N4746 were cited to support this argument.

41. Even where the threshold is reached and the rule against bias does apply, cases as Minister for Immigration and Multicultural Affairs v. Jia (2001) 205 CLR 507 at 529 have held that the level of impartiality expected from elected decision makers, such as Ministers, will be less than that required from other decision makers, because Ministers operate in areas subject to democratic and political accountability.

42. The NEC was composed of Ministers who were elected officials and operated in the field of political considerations, subject to democratic accountability to their electorates. Even in the even that natural justice requirements were to apply to the decisions in question, there would, therefore, be a high bar to be met in order to make out actual or apprehended bias as grounds of review.

43. As to the ground on Wednesbury unreasonableness based on the case of Associated Provincial Picture House v. Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, it was argued that the Court’s role is not to criticise the evaluative judgment which the decision maker has come to, nor to substitute their own judgment. Rather, the enquiry is to whether the decision taken was so unreasonable that it could not be said to be within the power of the authority.

44. In this instance, the NEC made the initial decision to establish TFS. It is in no way absurd that the NEC should have the authority to disband it which it itself had created, and that it should choose to exercise that authority. And it was drawn to the Court’s notice that the Plaintiff himself accepted, in paragraph 61 of his affidavit filed on 30th June 2014 that “....the NEC has the authority to disband/abolish ITFS (TFS)”.

45. The reasons given by Mr. Koim to demonstrate that the decisions were unreasonable represented a narrow view of the decision-making process. The wider view must be considered to appreciate the reasons for the decisions. Amongst them, was that the functions of the TFS have been transferred to the new interim body which was consistent with and in line with what other countries involved in fighting corruption are and have done, for instance, Australia, New Zealand, Singapore and Hong Kong. Learned counsel referred to an excerpt by Mark Findlay “Institutional Response to Corruption: Some Critical Reflections on the I.C.A.C” (1988) 12 Criminal Law Journal, 271 to show that what the Prime Minister and the NEC did was nothing more than adapting to the changes that are taking place around the world in terms of combating corruption.

46. While the immense contribution by Mr. Koim as Chairman of the TFS and the success of the TFS in terms of its investigations resulting in successful prosecution of public officials under his leadership is no doubt exceptional and acknowledged by the NEC, it was considered by the NEC that the new interim body be headed by an experienced person. Mr. Ellis was appointed ahead of Mr. Koim due to his vast experience as a lawyer and former judge of the National and Supreme Courts of PNG to continue the work of the TFS under a new body.

47. Learned counsel for the Third and Fourth Defendants’ argument focussed on the question of legal capacity of the TFS. His argument was that the policy decision by NEC to establish the TFS did not confer legal capacity on it to sue and be sued. He described it as a ‘loose organisation’ established purposely to investigate into allegations of corruption at the Department of National Planning and Monitoring and other Departments and State agencies and was subject to disbanding at any time by the NEC.

48. This argument was reinforced by the fact that there was no permanent structure for the TFS staff. Members were seconded from various key State agencies to work with the TFS but remained employees of the respective State agencies. For instance, Mr. Koim, in his capacity as a Principal Legal Officer at the Office of the Solicitor-General in the Department of Justice and Attorney-General, was seconded to the TFS by the said Department in August 2011. The NEC then appointed him as Chairman.

49. Finally, for the Court to intervene and review the decisions is not the solution. The remedy lay elsewhere. As PNG is a representative democracy and if people were aggrieved by the NEC decisions, they have two options. One is to exercise their right to replace the members of the NEC at election time and the other is to have the Prime Minister voted out of office in a vote of no-confidence by Parliament.

Consideration

50. The threshold issue whether the public policy decisions by the executive government were reviewable by the Court has been subject of judicial consideration and debate for sometimes in other countries like the United Kingdom, Canada, Australia and New Zealand until fairly recently in Papua New Guinea. In this jurisdiction the question arose in two cases which challenged the establishment of the TFS by the NEC in 2011. These were the cases of Paul Tiensten and Alois Kingsley Golu which the Defendants have referred to in their submissions.

51. In the United Kingdom the House of Lords decision in Council of Civil Service Unions case was one of those cases which acknowledged the ongoing debate on this issue. The facts are different to this case but it concerned the exercise of prerogative power by the Minister. It was an appeal from the decision of the Court of Appeal which dismissed the decision of Glidewell J for upholding an application for judicial review brought by the Council of Civil Service Unions and granted a declaration that an instruction issued by the Minister was invalid and of no effect.

52. In that case on 22nd December 1983 the Minister for Civil Service gave an instruction which varied the terms and conditions of service of staff of the Government Communications Headquarters (“GCHQ”) with the effect that they would no longer be permitted to belong to national trade unions. No consultation took place with the trade unions or with the staff prior to the issuing of the instruction. It was a matter of national security that they were not consulted. The instruction was issued by the Minister pursuant to a prerogative power and the issue was whether or not the exercise of prerogative power was reviewable.

53. But I think that, that decision was a breakthrough from what was traditionally considered, in my own words, ‘a no-go zone’ in judicial review of executive decisions. The Law Lords comprising of Lord Fraser of Tullybelton, Lord Scarman, Lord Diplock, Lord Roskill and Lord Brightman held that the prerogative was reviewable however, found that for national security reasons, it was within the Minister’s prerogative to issue the instruction without consultation and dismissed the appeal.

54. As to the question of reviewability Lord Scarman observed at 407 that:

“I believe that the law relating to judicial review has now reached the stage where it can be said with confidence that, if the subject matter in respect of which prerogative power is exercised is justiciable, that is to say of it is a matter upon which the court can adjudicate, the exercise of the power is subject to review in accordance with the principles developed in respect of the review of the exercise of statutory power.”

55. His Lordship concluded at 407 that:

“Just as ancient restrictions in the law relating to the prerogative writs and orders have not prevented the courts from extending the requirement of natural justice, namely the duty to act fairly, so that it is required of a purely administrative act, so also has the modern law, a vivid sketch of which may noble and learned friend Lord Diplock has included in his speech, extended the range of judicial review in respect of the exercise of prerogative power. Today, therefore, the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter.

Subject to these few comments, I agree with the speeches delivered by my noble and learned friends Lord Diplock and Lord Roskill. I am in favour of dismissing the appeal only because the respondent has established by evidence that the interest of national security required in her judgment that she should refuse to consult the unions before issuing her instruction. But for this I would have allowed the appeal on the procedural ground that the respondent has acted unfairly in failing to consult unions or staff before making her decision.”

56. The view expressed by Lord Scarman supported Mr.Koim’s argument that the relevant factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject-matter.

57. Lord Diplock stated this at 410:

“My Lords, I see no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review.”

58. His Lordship stressed that national security was the responsibility of the executive government and concluded at 412 – 143:

“....... so the crucial point of law in this case is whether procedural propriety must be give way to national security when there is a conflict between (1) on the one hand, the prima facie rule of “procedural propriety” in public law, applicable to a case of legitimate expectations that a benefit ought not to be withdrawn until that person has been given an opportunity to comment on the reason, and (2) on the other hand, action that is needed to be taken in the interests of national security, for which the executive government bears the responsibility alone has access to sources of information that qualify it to judge what the necessary action is. To that there can, in my opinion, be only one sensible answer. That answer is “Yes”.”

59. It is also instructive to note Lord Roskill’s observations at 414:

“.....Today it is perhaps common place to observe that as a result of a series of judicial decisions since about 1950 both in this House and in the Court of Appeal there has been a dramatic and indeed a radical change in the scope of judicial review. That change has been – by no means critically as an upsurge of judicial activism. Historically the use of the old prerogative writs of certiorari, prohibition and mandamus was designed to establish control by the Court of King’s Bench over inferior courts or tribunals. But the use of those writs, and of their successors the corresponding prerogative orders, has become more extensive. They have come to be used for the action whether of central or local government. Your Lordships are not concerned in this case with that branch of judicial review which is concerned with the control of interior courts or tribunals. But Your Lordships are vitally concerned with that branch of judicial review which is concerned with the control of executive action.” (Emphasis added).

60. His Lordship summarised thus at 414:

“In short the orthodox view was at that time that the remedy for abuse of the prerogative lay in the political and not in the judicial field.”

61. His Lordship listed some examples of prerogative powers which are not reviewable at 418 thus:

• Making of treaties.
• The defence of the realm.
• The prerogative (power) of mercy.
• The grant of honours.
• The dissolution of Parliament.
• The appointment of Ministers.
  

62. The House of Lords decision is of considerable persuasive value though not binding pursuant to Sch. 2.2 of the Constitution. Where it is appropriate and applicable to the circumstances in PNG, it may be applied.

63. In Australia the Federal Court had the occasion to consider the question of reviewability of executive decision in the Peko-Wallsend case. That was a case about holders of mineral leases granted under the Mining Act, 1939. Some of the sites in the leased land were proclaimed to be part of a national park under the National Parks and Wildlife Conservation Act, 1975. That Act prohibited mineral operations in a national park other than operations that were approved by the Governor-General in accordance with a plan of management relating to the park and also spared existing interests and provided compensation to persons adversely affected.

64. On 16th September 1986 it was announced after a meeting of federal Cabinet that the Government had agreed to endorse a plan of management for the park that would exclude the possibility of any new mining activity in the park and that federal Cabinet also agreed to take steps to nominate the land in question for inclusion in the World Heritage List pursuant to the World Heritage Convention of 1972, ratified by Australia in 1974. The implementation of this decision would mean that the land would be an “identified property” within the World Heritage Properties Convention Act, 1983 thereby giving rise to the possibility that the Governor-General might make a proclamation which would have the effect of making mining on sites of the leases unlawful.

65. The first instance Court held that the Cabinet was bound by the principles of natural justice to afford Peko-Wallsend an opportunity to be heard and since it had failed to afford such an opportunity, the Court declared the Cabinet decision void.

66. On appeal the Federal Court comprising of Bowen CJ, Sheppard J and Wilcox J in separate judgments, allowed the appeal. Bowen CJ in acknowledging and affirming the role of the Courts in judicial review proceedings as being not one of substitute decision-making but maintaining an oversight of legality and fairness in the decision-making process made this observation with respect to the exercise of prerogative power:

“The question whether the courts will review a decision made not under a statute but by virtue of the prerogative has not so far been decided in this country. In the United Kingdom in the CCSU case (supra) their Lordships took the view that Executive action was not immune from judicial review merely because it was carried out in pursuance of a power derived from common law or prerogative rather than a statutory source. A Minister acting under a prerogative power might, depending upon the subject-matter be under the same duty to act fairly as in the case of his acting under a statutory power. The words “depending on its subject-matter” were designed to cover matters which were regarded as not justiciable in the courts. Examples given included national security; the making of treaties; the defence of the country; the prerogative of mercy; the grant of honours; the dissolution of Parliament and the appointment of Ministers.

The inclusion or exclusion of matters from judicial review according to subject-matter may in some cases raise an initial question of some difficulty. In other cases the proper conclusion will be plain enough. Judges are conscious of the responsibilities carried by Ministers, of their accountability to Parliament and ultimately to the electors. They are conscious also that Ministers have the assistance of professional advisers in their departments. But as I have indicated the courts have not essay the role of substitute decision-makers. The question is how far the courts should properly go in reviewing legality and procedural fairness. It is the exclusion of some matters from this limited review on the grounds of subject-matter which is in question.”

67. The Chief Justice concluded that:

“......subject to the exclusion of non-justiciable matters, the courts of this country should now accept responsibility for reviewing the decisions of Ministers or the Governor-General in Council notwithstanding the decision is carried out in pursuance of a power derived not from statute but from common law or the prerogative.”

68. But held that the decision of 16th September 1986 was not justiciable. His reasons were:

“It is to Cabinet that the highest decisions of policy affecting Australia are brought. Often the questions arising involve intense conflict of interests or of opinion in the community. In Cabinet those conflicts have to be resolved. Decisions have to be taken in the public interest, notwithstanding that the lives, interests and rights of some individual citizens may be adversely affected by the decision.

........

In the present case it would, in my view, be inappropriate for this Court to intervene to set aside a Cabinet decision involving such complex policy considerations as does the decision of 16 September 1986, even if the private interest of the respondents was thought to have been inadequately considered. The matter appears to my mind to lie in the political arena.”

69. Sheppard J was not so definite on the reviewability of prerogative power although he thought that the course of decisions in the United Kingdom as in Council of Civil Service Unions case resulting in the conclusion that in some circumstances the Courts will review the exercise of prerogative power ought to be the law in Australia. His Honour was hesitant though, because:

“The way in which Cabinet operates as described in the authorities and texts to which I have referred would pose difficulties for a court in endeavouring to determine whether a decision was arrived at in accordance with law. The decision-making process does not readily lend itself to this type of review or investigation. Furthermore, there seem to me to be public policy reasons which makes it quite undesirable that a court should embark on such an exercise.”

70. Wilcox J considered both the issue of reviewability and merits of the exercise of prerogative power. His Honour referred to the High Court of Australia’s decision in R v. Toohey: Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170 and noted that Mason J gave a list of reasons for the distinction between reviewability of a statutory decision and a decision made pursuant to the Crown prerogative. His Honour further noted that Mason J did not reject the notion of review of a prerogative decision.

71. Furthermore, his Honour noted that the decision of the House of Lords in Council of Civil Service Unions case was consistent with the approach of Mason J in Toohey. It is instructive to note his Honour’s observations after noting the view expressed by Lord Scarman that the Court will look at the subject-matter of the decision and the view expressed by Lord Diplock, that the decision must have direct and immediate consequences which affect some person other than the decision-maker thus:

“It is obvious that it will be a rare case in which a Cabinet decision satisfies the tests postulated in CCSU but I think that, in the current state of authority, it is not possible to exclude the judicial review of a decision merely because it was one made by the Cabinet, merely because it was a decision taken in the exercise of the prerogative powers of the Crown or merely because the decision combined both these characteristics. The critical matter is the nature and effect of the relevant decision. Nature and effect involve two elements: Justiciability in the sense described by Lord Diplock in CCSU and, if the decision is justiciable, whether it contains some feature – for example, a relationship to national security or to international relations – which make judicial review inappropriate in the particular case.”

72. His Honour went on to hold that the decision was to implement a treaty and by its very nature, not justiciable or attracted the obligation to observe the principles of natural justice. Even then, his Honour held that the obligation to afford a hearing to the Respondents had been discharged by the fact that they had made submissions to Senator Gareth Evans and the Minister, the Honourable Mr. Barry Cohen which would have been presented to Cabinet for consideration. It followed that they could not expect the members of the Cabinet to personally hear their submission. Finally, the decision was not unreasonable.

73. In the New Zealand case of CREEDNZ Inc at 197-198, Richardson J said:

“The willingness of the Courts to interfere with the exercise of discretionary decisions must be affected by the nature and subject-matter of the decision in question and by consideration of the constitutional role of the body entrusted by statute with the exercise of power. Thus the larger the policy content and the more decision-making is within the customary sphere of elected representatives the less well-equipped the Courts are to weigh the considerations involved and the less inclined they must be to intervene.” (Emphasis added).

74. In this case it is quite clear that the decisions in question did not fall within the class of cases identified in the Council of Civil Service Unions case as being non-reviewable. They have been listed at [61] (supra). Similarly, they were not immune from judicial review on grounds of national security.

75. That left open the argument that they were reviewable. Mr. Koim made a strong point when he urged the Court to intervene to review the subject decisions. PNG is a nation of laws, not men and the Court as the guardian of the law has and must have authority to watch over the law and protect its people from arbitrary exercise of power by the executive government.

76. But the Defendants’ submission that not all executive acts or decisions were reviewable must be also acknowledged. For there are statutory decisions as in the cases of appointment and revocation of Departmental head and Heads of Statutory Bodies which are governed by statute and which are often subject of judicial review and there are policy decisions as in this case where there are no set procedures under any Constitutional Law or Act of Parliament by which the NEC must follow to arrive at a decision.

77. The reason for that distinction is that, our system of government is established by a written Constitution. There are three Arms of Government: The Legislature, The Executive and The Judiciary. This is recognised in Section 99 of the Constitution. The doctrine of separation of powers proceeds from it as well.

78. In a democratic system of government the doctrine of separation of powers is fundamental to the maintenance and survival of democracy. Governmental or State powers must be divided and kept separate amongst the three arms of government. Each arm must be weary and strive not to encroach on the powers of the other. At the same time there is a duty of each arm of government to check on the other’s exercise of powers. An effective system of check and balances within the democratic system of government are key factors to the maintenance and survival of democracy.

79. The Executive Arm is responsible for policies of the Government and it must be respected for that. For it is said that public interest plays a significant role in formulating and re-formulating policy decisions. It is the executive that formulate and re-formulate policies to meet the government’s goals and vision. The formulation and re-formulation of policies are based on wide ranging factors including economic conditions and law and order issues in the country. The decisions are also driven by different competing interests. It can be political, economic, social, private or public. For that, it is said that members of the executive are better placed and informed then judges to make those decisions: CREEDNZ Inc.

80. Another factor that lend support to the argument that such decisions lay in the ‘political arena’ is that Government policies change with Governments. A Government’s policies may not necessarily be the same as the other. For instance, it is common knowledge that the current Government under the leadership of the Prime Minister has adopted a free education policy. A new Government headed by a new Prime Minister may not necessarily continue to support this policy. It may even abolish it. The decision whether to keep or abolish the free education policy is a political one; one that is made by politicians, and should be kept at that level. It should not be subjected to judicial scrutiny.

81. The proposition that policy decisions should be left to politicians to make is re-affirmed by Section 153 (2) of the Constitution which states that “The question, whether the procedures prescribed for the National Executive Council have been or are being complied with, is non-justiciable.”

82. So it comes down to this, that policy decisions should be immune from judicial review. In this jurisdiction at least two National Court decisions favoured this position. The Court’s reluctance to review policy decisions was first affirmed in the Paul Tienstan’s case where Lenalia J was quick to acknowledge the separation of powers in the context of a challenge to the decision of the NEC to establish the TFS when he said at [38]:

“.......it is my respectful view that as a matter of practical politics or administrative decision, the Fourth Defendant ought not to be questioned by any court of law. The general provisions on the type of sanctions under those sections must give way to the interests of the executive decision by the NEC and the general public at large. On the issue of the validity of the executive acts of NEC, s.153 (2) of the Constitution states that, where the issue of whether the prescribed procedures are complied with is non-justiciable.”

83. In the second case of Alois Kingsley Golu Gavara-Nanu J said at [11]:

“....in my opinion the Court should be loath to review decisions of the NEC because it is not just an ordinary decision making body. It is a body made up of Ministers with the Prime Minister as its Chairman and is established by the Constitution under s. 149. It is at the apex of the executive arm of the Government (s.141 (2), thus making it a special decision making body. It has wide and inherent powers to make and formulate public policies. The Ministers who make up the NEC are appointed by the Prime Minister, and each Minister is responsible to the NEC for the functions of his portfolio and NEC is in turn responsible to the people: S.C.R. No.1 of 1982; Re Bouraga [1982] PNGLR 178. Such being the special and unique character of the NEC, unless the NEC clearly acts contrary to the provisions of the Constitution or the Organic Law, or a statute, it would in my opinion be improper for this Court to imply that it must go about its deliberations in a particular way which would always be subject to the scrutiny and supervision of this Court:....”

84. These cases bear testament to the Court’s reluctance to review policy decisions of the NEC. In this instant case these policy decisions did nothing more than to drive the executive government’s agenda – fighting corruption and that continued to be the case until the certification of the Constitutional Amendment (No. 40) (supra) on 30^th May 2014 for the establishment of the Independent Commission Against Corruption which would give it a legislative basis to exists and continue the fight against corruption.

85. This is where the description given by learned counsel for the Third and Fourth Defendants at [47] (supra) that the TFS is a ‘loose organisation’ has some force. It reinforces the argument that these decisions were purely policy decisions of the executive government on anti-corruption work. In other words, the TFS was an interim anti-corruption body not intended to have a legal status but established purposely to investigate into allegations of corruption at the Department of National Planning and Monitoring and other Departments and State agencies until the establishment of the permanent anti-corruption body.

86. And as learned counsel had submitted, the TFS’s lack of legal status in the strict sense is further reinforced by the fact that there is no permanent structure for the TFS staff. Members were seconded from various key State agencies to work with the TFS but remained employees of the respective State agencies. The Plaintiff is a classic example. In his capacity as a Principal Legal Officer at the Office of the Solicitor-General in the Department of Justice and Attorney-General, he was seconded to the TFS by the said Department in August 2011. The NEC then appointed him as Chairman. Given all these matters, I accept the submission that the TFS was subject to disbanding at any time by the NEC.

87. The concerns brought up by Mr. Koim that the Court as guardian of the law must have power to intervene to prevent arbitrary exercise of power by the executive government is noted. However, in my view, the remedy for that lies elsewhere. I accept the submission made on behalf of the NEC that to ask the Court to intervene based on the proposition advanced by Mr. Koim is not the solution to the dispute. I would further suggest, it is contrary to law. PNG is a representative democracy. If people were aggrieved by the NEC decisions, they had two options. One was to exercise their right to replace the members of the NEC at elections and the other, have the Prime Minister voted out of office in a vote of no-confidence by Parliament through their elected representatives.

88. The proposition put forth by counsel for the NEC is a significant one and needs expounding. I consider that the two options are significant constitutional safeguards against arbitrary exercise of power by the NEC and even Parliament as provided by Section 145 (Motion of no confidence) and Section 105 (General elections) of the Constitution. If effectively utilised, each can change the composition of the NEC and Parliament and even get the NEC to review the decisions in question.

89. And I do not believe that the situation is as bad as what Mr. Koim has portrayed in his submission that, the subject decisions were akin to a policy decision by the NEC to abolish the Department of Works and Implementation and irreparable damage will occur as a consequence. This submission is speculative and an assumption. It is also unsupported by evidence. However, if we do have political leaders who sit at the NEC level coming up with such decisions it would be time for the public of which Mr. Koim claims to represent to start asking some serious questions whether such leaders should continue to represent them in Parliament. The people themselves or through their elected representatives may exercise those mentioned options when the time comes. But the Court should not be used as a means to agitate their grievance.

90. I conclude that if the question of reviewability of policy decisions posed at [17] (supra), in this instance, the decisions in question were decided based on the test of source of power of the decision-maker (NEC), I find that the decisions were not reviewable and the answer to the question would be “No”. The application for judicial review will be dismissed on this ground.

91. However, the case of Council of Civil Service Unions which was referred to in the Peko-Wallsend case approved a further test relevant to deciding the question of reviewability of executive decisions. It was the nature and subject-matter of the decision. It is less rigid than the first one. The two local authorities referred to by the Defendants do not appear to have considered this test. Except for the general submission that the Peko-Wallsend case which cited the Council of Civil Service Unions case held that policy decisions were not reviewable, the Court was not assisted with submissions from the Defendants as to the appropriateness and applicability of this test to the circumstances of this case.

92. I accept Mr. Koim’s submission that the rigid application of the test for review of policy decisions was substantially relaxed in the United Kingdom in Council of Civil Service Unions case. And as noted from the foregoing discussions at [51] to [62] (supra) this test was applied in Australia in Peko-Wallsend case. There was no serious objection to the Court applying this test and I am prepared to follow the course taken by the Courts in those jurisdictions as part of developing the modern law on judicial review to meet the changes that are taking place in this body of law in this jurisdiction.

93. The grounds of review of policy decisions based on this test would be confined to those grounds applicable to statutory decisions. These are excess of power, abuse of power or unreasonableness.

94. The requisite test calls for the case to be contextualised and put into perspective. The decisions to establish the TFS, to abolish the TFS and to establish an Interim Office for Anti-Corruption which shifted responsibility for anti-corruption work to a body independent of the police force, were, in my opinion, significant decisions of anti-corruption policy of the executive government in terms of fighting corruption in the country.

95. Based on the uncontested facts set out at [13] (supra) it is clear to me that in 2011 the executive government was confronted with a huge challenge and that was allegation of corruption by Members of Parliament and public officials in the Department of National Planning and Monitoring as well as other Departments and State agencies with regard to the appropriation of the 2009 to 2011 Development Budget. It was said that corruption was widespread and rife as it involved many cases of public officials conspiring to defraud, misappropriation and misuse of substantial public funds at different Departments and State agencies. Amongst them, was the K125 million for the Kokopo Community Projects and K10 million which were said to be outside the Development Budget.

96. How was the Prime Minister and the NEC going to deal with this massive issue of corruption? Turn a blind eye and pretend that it did not exist, so to speak, or face the fact that the issue was real and deal with it? And how were they going to deal with it. The answer was, the Prime Minister and NEC established the TFS in 2011. That body was tasked by the NEC to investigate the allegations and it did its job, in fact, an exceptional one as the NEC itself had acknowledged in its decisions.

97. Amongst those investigated by the TFS and successfully prosecuted was the former Minister for National Planning and Monitoring Mr. Paul Tienstan for his involvement in the misuse of K10 million paid out to Travel Air Airline Company. He is currently serving a jail sentence of 9 years at Bomana CIS after an unsuccessful appeal to the Supreme Court. Parties can be referred to the published decisions of The State v. Paul Tienstan (2013) N5422; The State v. Paul Tienstan (2014) N5563 and Paul Tienstan v. The State (2015) SC1468 for further edification.

98. Thus, it is fair to say that the decision to establish the TFS and the TFS’s success proved to the nation the executive government’s commitment and seriousness in addressing the issue of corruption in public office. The work of the TFS under the leadership of Mr. Koim was proof of that, and was highly commended and applauded for achieving the executive government’s policy on fighting corruption in the country. I stand to be corrected on this, but I think this was the first official government policy on combating corruption in the country since Independence and the executive government must be commended for that.

99. The establishment of the TFS saw the engagement of officers from key State agencies like the Police Force, Department of Justice and Attorney-General, Tax Office, Department of Finance, Auditor-General’s Office, Department of National Planning and Monitoring and others to conduct investigations of corruption allegations in a coordinated and effective way.

100. But as the uncontested facts will further demonstrate the success of the TFS depended on, in my view, two things. One was funding and the other was staffing. As one will no doubt appreciate, in any given organisation, as work builds up, these resources must increase. The TFS was no exception and the NEC responded positively to these needs. More funding was given and plans were put in place to see the TFS restructured to include more staff and given a departmental status. That was between 2012 and 2013. All was well until investigation by the TFS revealed that Prime Minister himself was allegedly involved in approving a fraudulent payment of public funds to Paul Paraka Lawyers as legal fees in January of 2012. When invited to attend an interview with the Police on 16^th June 2014, he did not due to short notice and two days later, the TFS was abolished and a week later, the Interim Office for Anti-Corruption was established.

Breach of Natural Justice and Procedural Fairness

101. Given these facts, the question is does the requirements of natural justice and procedure fairness apply to policy decisions of the NEC? In the somewhat analogous United Kingdom case of R. (on the application of Niazi) v. Secretary of State for the Home Department [2008] EWCA Civ 755, the Court found that there was no obligation on the Secretary of State to consult before making a decision to end a discretionary, non-statutory scheme which provided compensation to victims of miscarriage of justice. Laws LJ said at ([41]):

“Public authorities typically, and central government par excellence, enjoy wide discretions which it is their duty to exercise in the public interest. They have to decide the content and the place of change. Often they must balance different, indeed opposing, interests across a wide spectrum. Generally, they must be the masters of procedure as well as substance; and as such are generally entitled to keep their own counsel. All this is involved in [.....] the entitlement of central government to formulate and re-formulate policy. This entitlement – in truth, a duty – is ordinarily repugnant to any requirement to bow to another’s will, albeit in the name of a substantive legitimate expectation. It is repugnant also to an enforced obligation, in the name of a procedural legitimate expectation, to take into account and respond to the views of particular persons whom the decision-maker has not chosen to consult.”

102. As it was pointed out at [76] (supra), there are no set procedure by which the NEC must follow to arrive at a decision. For this, I accept the Defendants’ submission that where Cabinet (or the NEC) makes decisions of policy or of a political nature, and there is no statute specifying a procedure to be followed in coming to the decision, they will not be under an obligation to observe the principles of natural justice. This is because past decided cases in Papua New Guinea and other common law jurisdictions demonstrated that the correct position was that natural justice was not an available ground of review for decisions of the NEC which have the character of the decisions in question in these proceedings.

103. I accept the distinction made by the Defendants between a policy decision and a statutory decision. A decision of policy undertaken by Cabinet, or a Cabinet-like body, which involves political judgment is of a different character from administrative or quasi-judicial decisions which are directly pointed at determining the rights of individuals. The Courts will not interfere to quash a decision of broader policy on the basis that the decision was made unfairly. This is even though the decision will undoubtedly affect individuals.

104. It is useful to note the observations by Bredmeyer J in respect of a claim of denial of natural justice in an appeal to the Governor-General in a land case in Burns Philip:

“There is no statutory provision that the Council must give the appellants an opportunity to be heard before it. In the absence of any expressed statutory provision as to procedure or criteria for decision I would be loathe to imply a requirement that the National Executive Council, or the Governor-General, must observe the rules of natural justice.

At common law the rules of natural justice, particularly the two cardinal rules that no man shall be a judge in his own cause and no man shall be condemned unheard, only apply to officials, tribunals, arbitrators, and others who have a duty to act judicially. See paras 64 and 65 of Vol 1 Halsbury’s Laws of England (4th ed.). At common law the duty to act judicially has been extended to a wide number of people and bodies e.g. clubs, trade unions, voluntary organizations, professional bodies, universities, other bodies exercising disciplinary functions, tribunals etc. The same position applies in Papua New Guinea by virtue of our Constitution. Under s 155(3) of the Constitution the National Court has an inherent power to review any exercise of “judicial authority”. That power to review may be removed or restricted by a constitutional law or a statute, see s 155(3)(e), in which case the National Court’s power of review can only be exercised where there are “over-riding considerations of public policy in the special circumstances of a particular case” (Section 155 (5)). But at the outset the National Court can only review the decision of an official or tribunal, which is exercising judicial authority. By s 59 of the Constitution we have a duty to develop the principles of natural justice but I consider that duty is limited to decision-makers who have a duty to act judicially. I consider that there is nothing in ss 11 and 12 of the Land Act which requires the National Executive Council in considering an appeal against a recommendation of the Land Board to act judicially and I would be loathe to imply those powers into Cabinet. The National Executive Council is the apex of the executive arm of government. Our Constitution establishes a separation of powers between the three arms of government with some links between them, but unless the National Executive Council acts contrary to the provisions of the Constitution or an Organic Law, or a Statute, I think it improper for this Court to imply that it must go about its deliberations in a particular way which is subject to the scrutiny and supervision of this Court.” (Emphasis added).
105. A similar distinction between judicial and political decision making was drawn by Lord Reid in the United Kingdom case of Ridge v. Baldwin referred to by the Defendants in their submissions. His Lordship said:

“In cases of the kind I have been dealing with the Board of Works or the Governor or the Club Committee was dealing with a single isolated case. It was not deciding, like a judge in a lawsuit, what were the rights of the person before it. But it was deciding how he should be treated - something analogous to a judge’s duty in imposing a penalty. No doubt policy would play some part in the decision - but so it might when a judge is imposing a sentence. So it was easy to say that such a body is performing a quasi judicial task in considering and deciding such a matter and to require it to observe the essentials of all proceedings of a judicial character - the principles of natural justice.

Sometimes the functions of a Minister or Department may also be of that character, and then the rules of natural justice can apply in much the same way. But more often their functions are of a very different character. If a Minister is considering whether to make a scheme for, say, an important new road, his primary concern will not be with the damage which its con-struction will do to the rights of individual owners of land. He will have to consider all manner of questions of public interest and, it may be, a number of alternative schemes. He cannot be prevented from attaching more importance to the fulfilment of his policy than to the fate of individual objectors, and it would be quite wrong for the courts to say that the Minister should or could act in the same kind of way as a board of works deciding whether a house should be pulled down.”

106. Similar statements have been made in Australian cases as to why a requirement of natural justice or procedural fairness is unlikely to apply to decisions taken by Cabinet. In McGuiness v. New South Wales which the Defendants referred to in their submissions, the Court found that a decision by Cabinet to impose special license conditions on 48 hotels was not a decision that was subject to procedural fairness constraints. Hall J said at 120:

“The fact of Cabinet participation in the decision-making process is also a matter that may, depending upon the facts, point against the existence of a duty to act fairly in relation to it. Mason CJ observed in O’Shea(supra), that if the decision is within an area that falls within the ambit or scope of Cabinet concern and decision-making, then procedural fairness may not apply. Certainly, decisions that truly involve political judgments are in a special category and, generally speaking, will not be amenable to challenge on grounds of procedural fairness considerations.”

107. It may well be that Mr. Koim and the members of the TFS were not heard before the decisions were taken by the NEC and that it was a matter of public interest and national importance that they be heard or had a reasonable expectation that they be heard but I accept the Defendants’ submission that the present case was not one where a statutory duty to make a decision has been given to the NEC in a manner that would give the NEC quasi-judicial or tribunal-like power to make a decision which directly determines the rights of an individual, which may attract requirements of procedural fairness. Rather, the decisions in questions were decisions of policy based on the political judgment of the decision-maker.

108. In another case which the Defendants referred to in their submissions, South Australia v. O’Shea Brennan J said this at 411:

“Under the Act, an offender does not have to be heard by the Minister as to the level of community risk which should be accepted consistently with the public interest in releasing persons who have been declared incapable of controlling their sexual instincts. The public interest in this context is a matter of political responsibility (see per Lord Greene M.R. in Johnson & Co. v. Minister of Health (1947) 2 All ER 395, at p 399) and the Minister is not bound to hear an individual before formulating or applying a general policy or exercising a discretion in the particular case by reference to the interests of the general public, even when the decision affects the individual's interests. When we reach the area of ministerial policy giving effect to the general public interest, we enter the political field. In that field a Minister or a Cabinet may determine general policy or the interests of the general public free of procedural constraints; he is or they are confined only by the limits otherwise expressed or implied by statute.”

109. In the New Zealand case of CREEDNZInc, the property owners whose property was located close to the site of a proposed smelter attempted to challenge a decision by the Executive Council to recommend that the smelter development be dealt with by way of a ‘fast track’ procedure. The basis of the challenge was the contention that the affected property owners were entitled to see the application and make submission on it to the Executive Council before the Executive Council decided to recommend that the development be ‘fast tracked’. The Court held that the affected property owners were not entitled to a hearing prior to the Executive Council making its decision. Cooke J said at 177:

“(i) The Executive Council, as the name implies, is the body at the apex of the governmental structure, necessarily dealing with major issues in a somewhat broad way. In New Zealand it is comprised of the same Ministers of the Crown as make up the Cabinet, a body existing by constitutional convention rather than law, and for the purposes of this case there is no practical distinction between the two. It would be very unusual to impose on this body of Ministers a duty of considering, whether directly or even in summarised form, the views on matters of national interest and the economy of all the individual property owners affected by a proposal who happened to wish to make representations.” (Emphasis added).

110. I consider that these statements regarding the New Zealand Executive Council are applicable to the NEC. Just as the Executive Council is “the body at the apex of the governmental structure” (CREEDNZ Inc), Gavara-Nanu J in Alois Kingsley Goludescribed the NEC as being “at the apex of the executive arm of the Government”. Like the Executive Council, the NEC deals with “major issues in a somewhat broad way” unless it has been given a specific narrower power by statute.

111. In CREEDNZ Inc, Cooke J went on to discuss (at pages 177-178) the Supreme Court of Canada decision in Attorney-General of Canada v. Inuit Tapirisat of Canada (1980) 115 DLR (3d) 1. In that case, the Plaintiffs sought to challenge a decision by the Governor-in-Council to reject the Plaintiffs’ appeal of the decision of the Canadian Radio-television and Telecommunications Commissions regarding a proposed increase in telephone rates. The basis of the challenge was that the Plaintiffs had been denied natural justice by the Governor-in-Council by the way their petition was dealt with. Cooke J considered the decision and said:

“In a judgment delivered by Estey J the Supreme Court stressed that “the very nature of the body must be taken into account in assessing the technique of review which has been adopted by the Governor in Council”. The Court said that it is always a question of construing the statutory scheme as a whole in order to see to what degree, if any, the legislator intended the principle to apply. Applying this approach it was held that there was “no need for the Governor in Council to give reasons for his decision, to hold any kind of a hearing, or even to acknowledge the receipt of a petition.”

That decision illustrates how slow the Courts are to treat the Executive Council or Cabinet as under any duty to follow a procedure at all analogous to judicial procedure.” (Emphasis added).

112. The decisions to disband the TFS and to establish an Interim Office for Anti-Corruption were made by the NEC. They were decisions taken at a high level of policy as to which institutions and schemes should best be established and maintained in order to deal with potential corruption. Such decision is entrusted to elected representatives. There is no statutory scheme which gave the NEC power to make the decisions which could be construed as imposing a requirement of natural justice on the NEC in exercising the power.

113. Let me further expound. It is not known at what stage the right to be heard will be accorded to Mr. Koim and the TFS. Is it at the time NEC receives a policy submission to disband the TFS and then invites them to respond or is it before that? The other issue is whether the NEC must hear from all the members including Chairman of the TFS or just the Chairman. Another important issue is the grounds upon which the NEC bases its decision to disband the TFS. What are they? The same questions can be asked in the case of the decision to establish the Interim Office for Anti-Corruption. These are some of the questions which remain unclear or unanswered and only a prescribed procedure under a Constitutional Law or Statute will clarify or answer them. And the fact that they were appointed to the TFS by the NEC in 2011 does not necessarily mean that they should be extended the benefit, that they had a reasonable expectation that they will be heard before decision.

114. It is for these reasons that I accept the Defendants’ submission that the fact that individuals may be affected by the decisions does not mean that the NEC was obliged to hear from those affected before it is to make a decision. Policy decisions, by their nature, are likely to ultimately affect individuals. If such obligation were to be imposed it would place a significant and unwieldy burden on the NEC which would be likely to severely curtail its ability to operate effectively. The decisions taken regarding TFS were policy decisions, not decisions made judicially to determine legal rights and obligations of the TFS members. There was no obligation on the NEC to accord the TFS team procedural fairness in making the decision regarding the TFS.

115. It is the absence of a statutory procedure that makes decisions taken by the NEC beyond the requirements of natural justice – the right to be heard before decision. This is the difference between this case and Thomas Nen case which the Defendants referred to in their submissions. It is for this reason that I accept that Defendants’ submission that in that case, the Court allowed a review of an NEC decision to revoke the appointment of Special Commissioners to the Special Land Titles Commission on the ground that natural justice had been breached because that case concerned exercise of power regulated by statute. The Commissioners whose revocations were the subject of dispute were appointed by the Head of State, on the advice of the NEC, pursuant to Section 6 of the Land Titles Commission Act, 1962 and Section 4 of the Land Disputes Settlement Act, 1975. Thus, that case does not support the argument that the NEC was bound to observe the principles of natural justice and procedure fairness.

116. This ground is dismissed.

Bias and Bath Faith

117. The Defendants led by learned counsel for the Prime Minister have made a compelling case that, other than in the case of judges, the rule on bias is derived from and forms part of the requirements of natural justice and procedural fairness. Bias is, therefore, only available as a ground of review in respect of decisions which are subject to the requirements of natural justice: Jacob Kumbu v. Dr. Nicholas Mann & UPNG and Michael A. Ntumy, Administrative Law of Papua New Guinea, CBS Publishers & Distributors (2ed 2003) at 542-543.

118. Bredmeyer J affirmed this in the context of Papua New Guinea in Burns Philip where his Honour said:

“At common law the rules of natural justice, particularly the two cardinal rules that no man shall be a judge in his own cause and no man shall be condemned unheard, only apply to officials, tribunals, arbitrators, and others who have a duty to act judicially. See paras 64 and 65 of Vol 1 Halsbury’s Las of England (4th ed.).”

119. In my view the application of the rule against bias is, therefore, subject to the threshold question of whether or not the requirement of procedural fairness applies to the proceedings at all. This is further confirmed by the absence of a Papua New Guinean decision successfully challenged on the basis of bias. As it was found, the requirements of natural justice and procedural fairness do not apply in this case, I am, therefore, satisfied that the decisions in question cannot be challenged on the basis of real or apprehended bias, and the second ground of review put forth by the Plaintiff must fail.

120. Even where the threshold is reached and the rule against bias does apply, cases as Minister for Immigration and Multicultural Affairs v. Jia at 529 have held that the level of impartiality expected from elected decision-makers, such as Ministers, will be less than that required from other decision-makers, because Ministers operate in areas subject to democratic and political accountability.

121. There was no direct evidence to establish that the NEC disbanded the TFS and shifted the work to the new interim body because it was done to stop or suppress the investigation by the TFS, possible arrest and charge of the Prime Minister in relation to the allegation made against him. There was also no direct evidence that the Prime Minister directed the NEC to make these decisions because he was being investigated by the TFS and could be arrested and charged in relation to the said allegation.

122. On the other hand, the evidence was circumstantial. It was Mr. Koim’s contention that because of certain events that occurred at close intervals, it could not be reasonably concluded that these decisions were coincidental. These events were the investigation of the Prime Minister by the TFS and report to Commissioner Kulunga on 5th May 2014, the grant of a warrant of arrest for the Prime Minister on 12th June 2014, the request to the Prime Minister to attend an interview with the Police on 16th June 2014, the non-attendance by the Prime Minister on the same date, the ‘impromptu’ disbanding of the TFS on 18th June 2014 and the establishment of the Interim Office for Anti-Corruption on 24th June 2014 it was open to the Court to infer and find that the NEC was biased or appeared to be biased in decisions taken. These decisions were also driven by bad motive and made in bad faith.

123. The inference is further supported by the argument that the Prime Minister had chaired the meetings in which these decisions were taken by the NEC and had exerted pressure or ‘dominating influence’ on the members of the NEC to decide as they did and even directed that the new interim anti-corruption body report directly to him.

124. These are well rehearsed arguments put forth by Mr. Koim but the law on circumstantial evidence, commonly applied in criminal cases, placed the burden of proof on the party who asserts to establish a case where all possible reasonable inferences available to the Court to draw are ruled out and that there is only one reasonable inference to draw. In their submissions, the Defendants made the same point but put it differently when they submitted that it was a collective decision of the NEC to disband the TFS and the same was done in the decision to establish the Interim Office for Anti-Corruption. Moreover, it was a political judgment, that the NEC was not constrained by one particular consideration but open to all.

125. The case presented by Mr. Koim represented how he perceived the events that occurred at the material time. However, the case must be considered in its proper context, taking into account all the circumstances. When one looks at the case in its entirety, first is that the NEC was composed of Ministers who were elected officials and operated in the field of political considerations, subject to democratic accountability to their electorates. And so, even in the event that natural justice requirements were to apply to the decisions in question, there would, therefore, be a high bar to be met in order to make out actual or apprehended bias as grounds of review.

126. Irrespective of that, the decisions were made by the NEC, a body comprised on 32 members. It was a collective decision in each instance. From the uncontested facts, I am satisfied that it was open to the NEC to make the decisions in questions for it considered that it was time for the TFS to be replaced with an independent anti-corruption body. The establishment of the Interim-Office for Anti-Corruption was a step in that direction. The certification of the Constitutional Amendment (No. 40) (supra) on 30th May 2014 reinforces the argument that it was open to the NEC to make the decisions in question.

127. The other consideration is that as observed at [100] (supra), due to increased work load, the TFS needed additional funding and staff. Does it need, from time to time, or at monthly intervals, to request the NEC for these resources to be increased? Or will a permanent body established together with its own yearly budgetary allocation to run its operations and activities without NEC’s constant supervision and intervention(as it appears to be the case now), be the solution to the funding and staffing issues currently experienced by the TFS?

128. In my view the latter appears to be the most sensible and logical answer. The Constitutional Amendment (supra) which can be found in annexure “AP-11” in the Affidavit of the Third Defendant filed on 11^th July 2014 is a significant development in the executive government’s policy on fighting corruption in the country in many respects. In a way it will give a legislative basis for the Anti-Corruption Body which will be headed by a Commissioner who will be renumerated at a judge’s salary and other conditions level and two Deputy Commissioners who will be accorded same at the Public Prosecutor’s level. Amongst other functions, it will investigate, on its own initiative, or on complaints received, alleged or suspected corrupt conduct. It will also have prosecution powers and enjoy immunity: Sections 220A, 220B, 220C, 220E and 220F.

129. If that is the direction the two other Arms of Government are and were heading, it would be a classic case of the Court encroaching on their powers if it were to uphold this ground of review and set aside the decisions in question. Such course would seriously undermine the Parliament’s power to pass this law under the guise of ‘check and balances’ by the Court.

130. While Mr. Koim’s submission that the decisions in question could not have been coincidental but deliberate and calculated to stop or frustrate the investigation and impending arrest of the Prime Minister, especially when he was being investigated and moves were underway to have him arrested and possibly charged for official corruption is well grounded, there is also the inference that those events were not the reasons for the disbanding of the TFS and establishment of Interim Office for Anti-Corruption. These events highlighted in the preceding paragraphs [126] to [128] reinforce the argument that it was open to the NEC to take them into account before the decisions in question were taken.

131. The final reason is this, there are two problems with the submission by Mr. Koim that the decisions were tainted with bias or made in bad faith because the Prime Minister is and was Chairman of the meetings and exerted pressure or “dominating influence’ on the members of the NEC to decide as they did. This submission must be rejected because first, there is no evidence to support it. It is also speculative and an assumption. Secondly, it fails to appreciate how the NEC operates and the point was made earlier that the decisions were made by a collective body. Not by one man, so to speak. Blackburn CJ in Whitlam v. Australian Consolidated Press (1985) 73 FLR 414 at 421-422 eloquently describes how NEC (Cabinet) operates in this way:

“Cabinet is a group of persons who have a common certain political aims. It has to make decisions which must command support in Parliament and, it is hoped, will command substantial support in the electorate. The common political aims are necessarily broad; in their particular applications they may be the subject of disagreement among members of Cabinet. Each member of Cabinet has a personal responsibility to his conscience and also a responsibility to the Government. Discussion and persuasion may abolish the disagreement, or they may merely reduce it, or leave it unaltered.

If any disagreement remains there must nevertheless be a decision, but it will be one which some members like less than others. Both practical politics, and good Government, require that those who like it less must still publicly support it. If such support is too great a strain on the Minister’s conscience, he can resign. So the price of acceptance of Cabinet office is the assumption of the liability to support Cabinet decisions. The burden of that liability is shared by all, and supported by the convention that every member is entitled to insist that whatever his own contribution was to the making of the decision, whether favourable or unfavourable, every other member will keep it secret.”

132. Furthermore, Mr.Koim’s concern that according to the second NEC decision, the Interim Office for Anti-Corruption which will be responsible for coordinating anti-corruption investigations will report directly to the Prime Minister is noted. Beyond that, it borders on speculation, which this Court is not prepared to embark on, save to note that by the same decision the NEC “directed that all files belonging to the Taskforce Sweep [were] transferred to the Interim Office for Anti-Corruption”. Thus, if there are any concerns about the work of the TFS, that is the answer. This would include the allegation against the Prime Minister. And I should implore that the new anti-corruption body be given every opportunity to carry out its functions and of course carry on the good work began by the TFS. And I think it is too early, to say the least, to pass judgment now, especially when it has yet to start work by reason of these proceedings (Decisions in question were stayed by order of 8th July and extended on 28th July 2014).

133. For all these reasons this ground is dismissed.

Unreasonableness

134. As to the ground on Wednesbury unreasonableness, I accept the general statement that the Court’s role is not to criticise the evaluative judgment which the decision-maker has come to, nor to substitute their own judgment. Rather, the enquiry is to whether the decision taken was so unreasonable that it could not be said to be within the power of the authority: Irabmile Investments Ltd v. Mobil Oil New Guinea Ltd (2015) SC1440.

135. In this instance, the NEC made the initial decision to establish the TFS. It is in no way absurd that the NEC should have the authority to disband it which it itself had created, and that it should choose to exercise that authority. I note that the Plaintiff himself accepted, in paragraph 61 of his affidavit filed on 30th June 2014 that “....the NEC has the authority to disband/abolish ITFS (TFS)”. In my view the admission reinforces the defence position all along that it was within the NEC’s discretion to disband the TFS.

136. Even so, I accept the Defendants’ submission that the reasons given by Mr. Koim that the decisions were unreasonable represented a narrow view of the decision-making process. The wider view must be considered to appreciate the reasons for the decisions. Amongst them, was that the functions of the TFS have been transferred to the new interim body which was consistent with and in line with what other countries involved in fighting corruption are and have done, for instance, Australia, New Zealand, Singapore and Hong Kong.

137. While the immense contribution by Mr. Koim as Chairman of the TFS and the success of the TFS in terms of its investigations resulting in successful prosecution of public officials under his leadership is no doubt exceptional and acknowledged by the NEC, it was considered by the NEC that it was time to move on and the new interim anti-corruption body be headed by an experienced person. Mr. Ellis was appointed ahead of Mr. Koim due to his vast experience as a lawyer and former judge of the National and Supreme Courts of PNG to continue the work of the TFS under a new body.

138. Further to the reasons given the decisions in question of the NEC are not subject to the requirement of natural justice. Therefore, they cannot be challenged on the basis of real or apprehended bias and this ground must fail.

139. The Council of Civil Service Unions case which was cited in Thomas Nen case where Lord Diplock elaborated on the test for this ground of review:

“By “irrationality” I mean what can by now be succinctly referred to as “Wednesbury unreasonableness”, a reference to the decision in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1947] EWCA Civ 1; (1948) 1 KB 223. It applies to a decision which is so outrages in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”

140. A criminal investigation can be undertaken in respect of individuals and corporations, and arrest warrants applied for, by members of the police force whether or not those members of the police force are operating under the label of “Investigation Task Force Sweep Team”. The decisions under review did not remove any members of the TFS from their position as police officers, nor did it prevent the police force pursuing an individuals or corporations identified by the TFS.

141. The NEC established a new body, the Interim Office for Anti-Corruption, to fill the role of the disbanded TFS. The transfer of responsibility for anti-corruption away from the TFS associated with the police force to an independent body is not unique to Papua New Guinea. I refer to article published Mark Findlay, ‘Institutional Responses to Corruption: Some Critical Reflections on the I.C.A.C’ (supra) referred to by learned counsel for the Prime Minister and note at 271-272, 278-279, that in 1974, Hong Kong established an Independent Commission Against Corruption to take over the anti-corruption role previously fulfilled by the Anti-Corruption Office of the Royal Hong Kong Police Force. It was said that an anti-corruption body which is independent to the police force has the advantage of being better placed to investigate corruption within police force itself, as well as within other government bodies.

142. Further, I note other examples in other jurisdictions such as the United Kingdom and several Australian states where they have established similar anti-corruption offices which are independent of the police force. They are:

• Criminal Justice Act 1987 (UK),
• Independent Broad-Based Anti-Corruption Commission Act 2011 (Vic),
• Independent Commission Against Corruption Act 1988 (NSW),
• Crime and Corruption Act 2001 (Qld),
• Serious Fraud Office Act 1990 (NZ).
• The Singaporean Corrupt Practices Investigation Bureau is one such body, and is under the charge of the Prime Minister’s Office (Constitution of the Republic of Singapore (Responsibility of the Prime Minister) Notification (Singapore, No. s653/2015)).
  

143. In my view the existence of these bodies in other jurisdiction indicates that there are good reasons why a government might change anti-corruption policy to establish an anti-corruption body which is independent of the police. Without any evidence that the NEC based its decision on some irrational reason, the decision to change anti-corruption policy in the manner it did cannot be regarded as to be beyond the power of the NEC.

144. The answer to the question about the cases which were undertaken by the TFS which were pending investigation, committal and prosecution is that, they were not abandoned. Rather, pursuant to the second NEC decision “all files belonging to the Taskforce Sweep [were] transferred to the Interim Office for Anti-Corruption.” Provisions were made for the work of the TFS to be continued. It cannot be suggested that the restructure of Government bodies is beyond the power of the Government merely because the work of the task force would be disrupted when the transition occurs.

145. Similarly, the fact that there are staff working in the office of a Government taskforce cannot mean that a decision to disband the taskforce is “so outrages in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”(Council of Civil Service Unions case).

146. If possible disruption to work and inconvenience to staff could make a decision to disband a Government taskforce so absurd as to be beyond power, no restructure or abolition of Government offices could ever be permitted, as all would involve some degree of disruption and inconvenience.

147. Another significant point that must be appreciated is that, parties must go back and trace the history of the TFS and remind themselves as to the very purpose why the TFS was established way back in 2011. I refer parties back to [95] to [98] (supra) for more information. It is also be noted that the TFS has been extremely productive in its work where the country has seen a high turn-over within a short space of time since its inception in 2011 where a number of arrests have been and/or convictions secured before the National Court. Amongst those and the notable one is the arrest, prosecution, conviction and sentence of Mr.Tienstan: see [96] (supra).

148. For the forgoing reasons, I am not satisfied that the decisions in question were unreasonable. This ground is dismissed.

Standing of Plaintiff

149. The NEC supported by the Third and Fourth Defendants objected to Mr. Koim’s standing. They asserted that his contract of employment with the Department of Justice and Attorney-General had expired and by virtue of that, was no longer an employee of the State when he commenced these proceedings. The expiry of the contract reinforced both that the NEC decision was not one of a judicial or quasi-judicial character, as it had no effect on Mr. Koim’s rights under the contract and that even in a practical sense Mr. Koim was little affected by the NEC decision, as his contract was almost at an end in any event.

150. The first ground relied upon by Mr. Koim to oppose the objection was that the expiry of the contract was not a ground of review in these proceedings and should not have been brought up by the defence. Leave for judicial review was granted by the Court on the ground that in his capacity as Chairman of the TFS, he had standing. Thus, the objection was misconceived. In any case, it was belated and should be dismissed because these proceedings have progressed to an advanced stage where the parties have addressed the substantive dispute.

151. Secondly, his appointment as Chairman of the TFS was not conditional upon him being the Principal Legal Officer at the Department. To interpret the contract in that manner would be reading too much into the NEC decision of 11thAugust 2011 which established the TFS. Even if the contract had expired, his status as a public servant did not change. He remained an unattached officer in the Public Service.

152. The final ground was that since commencement of work at the Department in 2009, his contract was renewed on several occasions. Nor was he charged or found guilty of a disciplinary offence which would have warranted his termination from employment. Thus, he had, had a reasonable expectation that it would be renewed after it expired. According to General Order (GO) 9.73 “A contract holder shall be informed by the Agency Head of a decision by the Secretary, Department of Personnel Management, to renew an expiring contract at a suitable time as determined by the Agency Head, between three months and no later than, one month prior to contract completion date.” No notice was given by the Departmental Head to inform him of the renewal or otherwise of the contract before it expired and he believed that it would be renewed anyway.

153. There is no doubt that the question of expiry of Mr. Koim’s contract was not a subject of these proceedings because it was not a ground of review. In that sense, it is quite correct for Mr. Koim to contend that it was not open to the Defendants to object to his standing on that ground. However, it is not quite correct for him to contend that his Chairmanship of the TFS was not conditional upon him being the Principal Legal Officer at the Department. It is important to understand that his position in the Department was Principal Legal Officer. His employment on that position was under a contract of employment for three years. In other words, it was a contract position. When the contract expired, his employment as a Principal Legal Officer ceased. Whether he remains a public servant or an officer of the Public Service is irrelevant for our purposes.

154. From my reading of the NEC decision of 11th August 2011 and the contract of employment it is quite clear it was intended by the parties that Mr. Koim be appointed Chairman of the TFS while in his capacity as Principal Legal Officer at the Department, although the contract refers to Mr.Koim as “Senior Officer”. As he was employed under a contract and when it expired, his employment as Principal Legal Officer ceased. He would not have the requisite standing as Chairman of the TFS following the cessation to assert that he was the Chairman at the time he commenced these proceedings. Even if the TFS was the main Plaintiff, it would also lack capacity to commence proceedings for the reasons given earlier at [85] to [86] (supra).

155. The question of standing is one of the threshold issues that must be resolved. There appears to be no hard-and-fast rule on when it can be resolved. Some say it be resolved and was resolved at the leave stage and should not be resurrected. Others say if it was decided at the grant of leave, it can be resurrected. I express no views on which view is correct and should apply. But it has been raised by the defence and for this reason and that it is a threshold issue, I propose to consider it even though I agree with Mr. Koim that it is a belated call.

156. For the reasons given above, I uphold the objection on the ground that the Plaintiff lacked standing to commence these proceedings. The proceedings will be dismissed on this further ground.

Competency of Proceedings

157. Finally, the Prime Minister, the Third and Fourth Defendants supported by the NEC objected to the competency of the proceedings, learned counsel contending that the proceedings is incompetent because Mr. Koim had not filed a Notice of Motion to comply with the requirement of Order 16, rule 5 of the National Court Rules, and as directed by Gavara-Nanu J on 8th July 2014.

158. Order 16, rule 5 provides that “....when leave has been granted to make an application for judicial review, the application shall be made by Notice of Motion to the Court.” (Emphasis added).

159. The objection was grounded on the notion that Order 16 of the National Court Rules is a special and exclusive procedure for judicial review proceedings. The rules under Order 16 play a significant role as guidelines on the conduct and presentation of judicial review proceedings and must be diligently observed.

160. Of specific mention was the Notice of Motion where it was argued that it is and was the mode by which judicial review proceedings are commenced following grant of leave and must be complied with. For it was held that, the Notice of Motion is mandatory and must be filed and served on all persons directly affected or anyone with direct interest in the subject proceedings.

161. A host of published decisions by the National Court and Supreme Court were supplied to support this argument. They were Yanta Development Association Inc v. Piu Land Group Inc&Ors(2005) SC789; Timbani Longai v. Steven Maken &Ors(2008) N4021; Peter Makeng &Ors v. Timbers (PNG) Limited & Ors (2008) N3317; Piu Land Group Inc v. Sir Michael Somare & The State (2004) N2660; Tzen Pacific Limited v. Kanawi Pouru&Ors (2013) N5156; Alex Timothy v. Hon. Francis Marus &Ors(2014) SC1403; Peter O’Neill v. Chief Magistrate Nerrie Eliakim&Ors(2016) SC1539 and Mathew Vingome v. John Diala& UPNG (2014) N5710.

162. There was at least one published National Court decision which did not dismiss the judicial review proceedings for failing to comply with Order 16, rule 5 requirement. That was in the case of Phillip Isu &Ors v. John Ofoi &Ors (2014) N5518.

163. The Defendants contended that, that case can be distinguished from the facts before the Court in this case because in that case the Court had not ordered, at the time of granting leave to apply for judicial review, that the Plaintiff file and serve a Notice of Motion under Order 16, rule 5.

164. Alternatively, on the proper analysis of the National Court Rules, the special nature of judicial review proceedings, and the authorities, the Court should find that the Court’s jurisdiction to grant any orders or relief by way of judicial review had not been properly invoked.

165. The argument was that the failure by Mr. Koim to comply with Order 16, rule 5 was a significant breach of the rules which had the effect of rendering the proceedings incompetent and the proceedings must be dismissed. The failure was critical to the competency of the proceedings and can be raised at any stage of the proceedings and in this instance, the Court must find in favour of the defence on this issue.

166. Despite Mr. Koim’s strong objection to the belatedness of the objection to the competency of the proceedings, I agree with the Defendants that the objection raised a competency issue. As competency issues may be raised at any stage of the proceedings, it will be considered: Sir Arnold Amet v. Peter Charles Yama (2010) SC1064.

167. As to the merits of the objection, it is noted that the cited cases lend considerable support to the proposition that the conduct and presentation of judicial review cases must be based on Order 16. They spoke of complying with Order 16 rules. It begins with the documentation filed by the Plaintiff. Has the Plaintiff filed all the relevant documents required by Order 16 including the subject Notice of Motion?

168. First, it is noted that there is a Notice of Motion filed by the Plaintiff at the commencement of the proceeding. Subsequently, the Notice of Motion was amended. The Defendants do not take issue with these documents. However, they contended that they are irrelevant because Mr. Koim must file and serve a Notice of Motion as required by Order 16, rule 5. Secondly, the substantive orders or relief are being sought in each document.

169. The question one must ask then is, if that was so, why was it then necessary for the Plaintiff to file a Notice of Motion which was subsequently amended? What was it for? The Defendants have not answered this question because they have over-looked it.

170. I must assume that it was for the purpose to which Order 16, rule 5 envisaged, albeit it was filed at the commencement of the proceedings and not after the grant of leave. In my view, whether it was filed before or after the grant of leave is trivial and not fatal to the competency of the proceedings. A more significant issue where the defect can be fatal to the entire proceedings is where no Notice of Motion is filed or one filed but does not set out the orders or relief being sought by way of judicial review. It is based on these factual differences that I distinguish this case from the other cases cited by the Defendants which held a contrary view.

171. The case of Mathew Vingome is an example of the latter case. The proceeding was dismissed because although a Notice of Motion was filed at the commencement of proceedings, it did not set out the orders or relief being sought by way of judicial review. I am of the view that this case is different from Mathew Vingome case because the orders or relief being sought were pleaded in the Notice of Motion or Amended Notice of Motion for that matter. For this reason I am satisfied that the Defendants were put on notice on the kind of orders or relief being sought by the Plaintiff.

172. This case is similar to the case of Phillip Isu where the Notice of Motion was held to be sufficient for the purpose of Order 16, rule 5 even though it was filed before the grant of leave. In addition, the orders or relief were set out in the Notice of Motion. In this case the Notice of Motion also sets out the orders or relief or orders being sought by way of judicial review.

173. Secondly, the fact that the Court had ordered the Plaintiff to file and serve a Notice of Motion after grant of leave is, in my view, nothing more than reminding and drawing to the notice of the Plaintiff the need to comply with the requirement under Order 16, rule 5. As a Notice of Motion (amended Notice of Motion) has been filed and sets out the orders or relief being sought by way of judicial review, it is sufficient for the purpose of complying with the requirement under Order 16, rule 5.

174. My view is fortified by the fact that the defence has not been able to demonstrate how it has been prejudiced by the breach of this rule. From the present indications, I have no doubt in my mind that they were well aware of the Plaintiff’s case. This is evident in the way they addressed the issues brought up in these proceedings which I should add, based on thoroughly well researched submissions supported by case law and references. Thus, I think they are making a big issue out of something that is really trivial.

175. Finally, the proceedings brought up issues of public policy and national importance. It is in the interests of justice that they be judicially determined for the benefit of the parties rather than having the proceedings dismissed prematurely on a competency ground. The objection is, therefore, dismissed as being without merit.

Summary

176. The proceedings will be dismissed on the grounds that first, the decisions in question are not reviewable. Secondly, even if they were, the requirements of natural justice and procedural fairness did not apply. Thirdly, bias and bad faith have not been established and finally, so as, unreasonableness. A further ground for dismissal is that the Plaintiff lacked the requisite standing to commence these proceedings. The objection to the competency of these proceedings was dismissed.

Order

177. The orders are:

1. The objection to competency is dismissed.

2. The application for judicial review is dismissed.
   
3. The ex parte interim stay order of 8^th July 2014 and extended on 28th July 2014 until the determination of the proceedings is discharged forthwith.
   
4. The First Defendant’s Notice of Motion filed on 2nd March 2016 is adjourned to a date, to be fixed, for mention.
   
5. Except for costs awarded to the Plaintiff, the rest of the costs of the proceedings shall be paid by the Plaintiff, to be taxed, if not agreed.
   

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Twivey Lawyers: Lawyers for the First and Second Defendants
N. Tame Lawyers: Lawyers for the Third and Fourth Defendants