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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SC REF NO 3 OF 2021
SPECIAL REFERENCE PURSUANT TO
CONSTITUTION, SECTION 19
REFERENCE BY THE PUBLIC SOLICITOR
RE JURISDICTION OF THE PUBLIC SERVICES COMMISSION AND THE POWERS AND FUNCTIONS OF THE AUDITOR-GENERAL
Waigani: Kandakasi DCJ, Batari J,
Cannings J, Hartshorn J, Makail J
2022: 27th April, 11th October
CONSTITUTIONAL LAW – Public Services Commission – whether Public Services Commission has jurisdiction to review personnel matters regarding officers or employees of office of Auditor-General – Constitution, Division VII.2 (the Public Services Commission), sections 191 (functions of the Commission), 194 (“personnel matters”).
CONSTITUTIONAL LAW – constitutional office-holders – Auditor-General – powers and functions of Auditor-General – Constitution, Subdivision VIII.1.B (the Auditor-General) – whether amendment to Public Services (Management) Act to make Auditor-General a deemed departmental head is constitutional.
Five questions of constitutional interpretation and application were referred by the Public Solicitor to the Supreme Court under s 19(1) of the Constitution, regarding the office of Auditor-General. The first question concerns the jurisdiction of the Public Services Commission in relation to the office of Auditor-General. The question is: “Does the Public Services Commission have jurisdiction under section 191 of the Constitution to review any decision of the Auditor-General or an officer or employee of the Auditor-General office?” The remaining questions concern an amendment to the Public Services (Management) Act 1995 made in 2020 by which the Auditor-General has become a “deemed departmental Head”. Questions 2 to 5 ask whether that amendment is constitutional. The Public Solicitor argued that all questions be answered in the negative. The intervener, the Principal Legal Adviser and Attorney-General, after initially signalling that he would argue the contrary propositions, ultimately did not object to the answers proposed by the Public Solicitor.
Held:
(1) A primary function of the Public Services Commission under s 191 of the Constitution is the review of personnel matters connected with the National Public Service. As to whether personnel matters within the office of Auditor-General are connected with the National Public Service, it is relevant that the office of Auditor-General is not part of the National Public Service, its officers and employees are not members of the National Public Service, personnel decisions of the Auditor-General are not sufficiently connected to the National Public Service, the office of Auditor-General has a special constitutional status and the Public Services Commission has no general jurisdiction over personnel matters in the public sector.
(2) Question 1 is answered: no, the Public Services Commission has no jurisdiction to review personnel decisions of the Auditor-General or officers or employees of the Auditor-General’s office.
(3) The 2020 amendment to the Public Services (Management) Act, by which the Auditor-General is a deemed departmental head: (a) obliges the Auditor-General to report to the departmental head of the Department of Personnel Management on a wide range of matters; (b) obliges the Auditor-General to implement government policies and decisions and comply with directions issued by the departmental head of the Department of Prime Minister and National Executive Council; (c) subjects the Auditor-General to a regime of performance appraisal and review established for departmental heads; (d) obliges the Auditor-General to comply with staff and personnel emolument ceilings set by the departmental heads of the Departments of Personnel Management and Treasury; and (e) subjects the Auditor-General to the same appointment and termination procedures that apply to departmental heads.
(4) The combined effect of those statutory measures is to subject the Auditor-General to a regime of supervision and control inconsistent with the general principle of constitutional independence under Part IX of the Constitution, and is inconsistent with the specific statement of independence in s 213(3) of the Constitution that the Auditor-General in the performance of his functions under the Constitution is “not subject to the control or direction of any person or authority”.
(5) Questions 2 and 3, which ask whether the 2020 amendment is constitutional as it alters the status of a constitutional office-holder to a departmental head and subjects the Auditor-General to the dictates of the Public Services (Management) Act and the Public Service General Orders, are answered no.
(6) Questions 4 and 5, which ask whether the 2020 amendment is compliant with ss 12, 13 and 14 of the Constitution (which deal with alteration of the Constitution and the Organic Laws) are considered unnecessary and hypothetical, and the Court declined to give an opinion on those questions.
(7) In summary, questions 1, 2 and 3 are answered no. As to questions 4 and 5, the Court declined to give an opinion.
Cases Cited
The following cases are cited in the judgment:
Application by Sir Makena Geno (2016) SC1581
Constitutional Reference No 1 of 1978 [1978] PNGLR 345
SC Ref No 3 of 2018, Reference by the Public Solicitor re Jurisdiction of the Public Services Commission (2019) SC1871
Counsel
L B Mamu, T Ilaisa & L Giyomwanauri, for the Referrer, the Public Solicitor
T Tanuvasa, T Mileng & N Aiwara, for the Intervener, the Principal Legal Adviser & Attorney-General
11th October, 2022
1. BY THE COURT: Five questions of constitutional interpretation and application have been referred by the Public Solicitor, Mr L B Mamu, to the Supreme Court under s 19(1) of the Constitution regarding the office of Auditor-General. The Public Solicitor, being one of the three Law Officers of Papua New Guinea (Constitution, s 156), is one of the authorities entitled to refer constitutional questions to the Supreme Court under s 19.
2. Question 1 concerns the jurisdiction of the Public Services Commission in relation to the office of Auditor-General. Questions 2, 3, 4 and 5 concern an amendment to the Public Services (Management) Act 1995 in 2020 by which the Auditor-General has become a “deemed departmental head”.
3. The referrer, the Public Solicitor, argues in relation to question 1 that the Public Services Commission has no jurisdiction and in relation to questions 2 to 5 that the amendment to the Public Services (Management) Act is unconstitutional.
4. The Principal Legal Adviser and Attorney-General, who at the relevant time was Dr E Kwa, has been granted leave to intervene in the proceedings. He initially signalled that he would argue the contrary propositions, but ultimately did not object to the answers proposed by the referrer.
QUESTION 1: DOES THE PUBLIC SERVICES COMMISSION HAVE JURISDICTION UNDER SECTION 191 [OF THE CONSTITUTION] TO REVIEW ANY DECISION OF THE AUDITOR-GENERAL
OR AN OFFICER OR EMPLOYEE OF THE AUDITOR-GENERAL’S OFFICE?
5. Much the same question was posed by the Public Solicitor, regarding his own office, in SC Ref No 3 of 2018, Reference by the Public Solicitor re Jurisdiction of the Public Services Commission (2019) SC1871. The question in that case was whether the Public Services Commission has jurisdiction to review personnel matters arising in the
office of Public Solicitor. It was answered no, the Public Services Commission has no jurisdiction.
6. It is one of the primary functions of the Public Services Commission under s 191 (functions of the commission) of the Constitution to review “personnel matters connected with the National Public Service”. The nature and scope of that function is spelt out in Part III (review of personnel matters) of the Public Services (Management) Act 1995.
7. We consider, having regard to the opinion of this Court in SC Ref No 3 of 2018, that decisions of the Auditor-General and officers or employees of the Auditor-General’s on personnel matters, including decisions as to appointment of officers, terms and conditions of employment of officers and discipline of officers, are not connected with the National Public Service, for the following reasons.
8. First, the office of Auditor-General is not part of the National Public Service, which is a discrete State Service established by s 188(1) of the Constitution. The office of Auditor-General is a constitutional institution, being established by s 213 of the Constitution, and falling within the definition of constitutional institution in Constitution, s 221. It is established and operates separately and apart from the National Public Service.
9. Secondly, officers and employees of the office of Auditor-General are not members of the National Public Service. They are employed under Part VII (staff, finance and audit) of the Audit Act 1989 and there is no provision requiring or deeming them to be officers or employees of the Public Service.
10. Thirdly, personnel decisions of the Auditor-General are made under s 20(2) of the Audit Act, which provides:
The Auditor-General is authorized, in respect of persons appointed under Subsection (1), to exercise the powers and perform the duties and functions of the Department of Personnel Management and of a Departmental Head under the Public Services (Management) Act 1995 that relate to personnel management, including the determination of terms and conditions of employment.
11. Fourthly, the office of Auditor-General has a special constitutional status. The Auditor-General is a constitutional office-holder by virtue of s 221 (definitions) of the Constitution and has security of tenure and guaranteed resources and facilities under Part IX (constitutional office-holders and constitutional institutions) of the Constitution. The Auditor-General enjoys a high degree of independence by virtue of s 213(3) (establishment of the office of Auditor-General) of the Constitution, which states:
In the performance of his functions under this Constitution, the Auditor-General is not subject to the control or direction of any person or authority.
12. The office of Auditor-General is, in line with the reasoning of the Supreme Court in Constitutional Reference No 1 of 1978 [1978] PNGLR 345, not a “governmental body”. It is consistent with the principle of constitutional independence of the Auditor-General for his decisions on personnel matters to be beyond the review jurisdiction of the Public Services Commission. Given the degree of independence enjoyed by the Auditor-General there would need to be an express conferment of jurisdiction on the Public Services Commission for it to be allowed to intrude into his independence. But there is none.
13. Finally, we adopt the important point made by the Court in SC Ref No 3 of 2018 that the Public Services Commission has no general jurisdiction over personnel matters in the public sector. It is a creature of the Constitution and its jurisdiction is circumscribed by the Constitution. For personnel matters in the public sector to be brought within its jurisdiction, those matters must be “connected with the National Public Service”, and there is no such connection in the case of the office of Auditor-General.
Answer to question 1
14. No. The Public Services Commission has no jurisdiction to review personnel decisions of the Auditor-General or officers or employees of the Auditor-General’s office.
QUESTION 2: IS SECTION 3 OF THE PUBLIC SERVICES (MANAGEMENT) AMENDMENT ACT 2020 CONSTITUTIONAL TO THE EXTENT THAT IT ALTERS THE STATUS OF A
CONSTITUTIONAL OFFICE-HOLDER (THE AUDITOR-GENERAL) TO A DEPARTMENTAL HEAD UNDER SECTION 22 OF THE PUBLIC SERVICES (MANAGEMENT) ACT 1995?
15. This is the first of four questions relating to the constitutionality of s 3 of the Public Services (Management) (Amendment) Act No 5 of 2020, which relevantly provides:
Section 22 of the Principal Act [the Public Services (Management) Act 1995] is amended – ...
(c) by inserting a new subsection after Subsection (2) as follows:
(3) For the purposes of this Act, the following are deemed Departmental Heads:
(a) the Commissioner General of Internal Revenue Commission; and
(b) the Auditor-General; and
(c) a Provincial Administrator; and
(d) the First Legislative Counsel; and
(e) such other officers specified by the Head of State, acting on advice.
16. The effect of the amendment is that the Auditor-General, amongst others, is for the purposes of the Public Services (Management) Act a deemed departmental head. Thus, the Auditor-General has all the powers, functions, duties and responsibilities of the head of a department of the Public Service (see the definition of “departmental head” in s 2 of the Act and the deeming provision in s 75 of the Act).
17. This is problematic as the Auditor-General is a constitutional office-holder as defined by s 221 of the Constitution.
18. This question is double-barrelled. It poses two questions: First, does the 2020 amendment alter the status of the Auditor-General from a constitutional office-holder to that of a departmental head? Secondly, if it does alter the status of the Auditor-General, is the amendment constitutional?
Does the 2020 amendment alter the status of the Auditor-General from a constitutional office-holder to that of a departmental head?
19. The 2020 amendment to the Public Services (Management) Act, by which the Auditor-General is a deemed departmental head, has numerous consequences for the Auditor-General. We highlight four.
(i) Additional functions, duties and responsibilities
20. New functions, duties and responsibilities are conferred on the Auditor-General, additional to those already conferred by s 214 (functions of the Auditor-General) of the Constitution and Part III (audit) of the Audit Act. These include significant reporting obligations, which did not exist prior to the 2020 amendment.
21. This is borne out by s 22A(4) of the Public Services (Management) Act (a new provision inserted in the Act under the 2020 amendment), which states:
The functions of any other Departmental Head [besides the Departmental Head of the Department of Prime Minister and National Executive Council and the Departmental Head of the Department of Personnel Management] are —
(a) to be the principal adviser to the portfolio Minister in respect of the functions of the portfolio Minister under the Ministerial Determinations made by the Prime Minister under Section 148 of the Constitution; and
(b) to administer the respective legislation for which the portfolio Minister is responsible under the Ministerial Determinations; and
(c) to ensure the efficient and effective performance of the department in the delivery of services to the public, enforcing compliance with legislation, and implementing Government policies; and
(d) to co-operate with the Departmental Head of the Department of Prime Minister and National Executive Council in the exercise of that Departmental Head's functions and in particular to —
(i) comply with regulations issued under the Prime Minister and National Executive Council Act 2002 for the policy review of National Executive Council submissions; and
(ii) provide timely reports to the Departmental Head of the Department of Prime Minister and National Executive Council in respect of the implementation of National Executive Council decisions; and
(iii) produce timely action plans for consideration by the Central Agencies Co-ordination Committee and any sub-committees as required by the Chairman of the Central Agencies Co-ordination Committee; and
(e) to co-operate with the Departmental Head of the Department of Personnel Management in the exercise of that Departmental Head's functions and in particular to —
(i) comply with the Regulations, General Orders and Circular Instructions issued to effect government employment strategies, policies and procedures, and in particular to maintain equitable and socially inclusive principles and values prescribed by this Act; and
(ii) provide reports to the Departmental Head of the Department of Personnel Management in respect to all employment matters covered by the General Orders to effect greater and more economical efficiency of the Department; and
(iii) seek advice from the officers of the Department of Personnel Management in respect to the application of policies and procedures governing those matters delegated to the said Departmental Head under Section 23; and
(iv) inform the Departmental Head of the Department of Personnel Management of any matter in relation to corruption within the Department as prescribed by the National Public Service Code of Ethics and Conduct; and
(v) satisfy the Departmental Head's performance requirements under Section 24A.
(ii) Auditor-General brought within jurisdiction of Department of Personnel Management
22. The Auditor-General is now subject to the jurisdiction of the Departmental Head of the Department of Personnel Management under s 22B (powers of the Departmental Head of the Department of Personnel Management). This is another new provision inserted in the Act under the 2020 amendment, which provides:
The Departmental Head of the Department of Personnel Management may, at any time, for the purpose of the performance of his functions —
(a) enter premises occupied or used by a Department or a Provincial Government or a public body; and
(b) question a person who appears likely to have information relevant to the functions of the Departmental Head of the Department of Personnel Management; and
(c) require any person to provide information relative to the functions of the Departmental Head of the Department of Personnel Management; and
(d) require any person to produce documents within his possession or subject to his control where such documents are relevant to the functions of the Departmental Head of the Department of Personnel Management; and
(e) make and retain copies of documents referred to in Paragraph (d); and
(f) require a Departmental Head, a head of a public body or a Provincial Administrator to appear before the Departmental Head of the Department of Personnel Management to give information on matters under this section.
(iii) Auditor-General subject to statutory performance appraisal
23. The Auditor-General is now subject to an enforceable performance appraisal process under s 24A (work performance of departmental heads). This is another new provision inserted in the Act under the 2020 amendment, which provides:
(1) The Head of State, acting on advice, given after consideration of recommendations made by the Departmental Head of the Department of Personnel Management, in consultation with the Secretary, may make regulations prescribing standard criteria and procedures for the appraisal of the performance of Departmental Heads consistent with the provisions of their Contracts of Employment under Section 28 of this Act.
(2) The Prime Minister may establish a separate performance review process conducted by non-public service adjudicators accredited by the Public Service Commission for that purpose, in respect to the appraisal of performance of the Departmental Head of the Department of Personnel Management and the Secretary as prescribed in the regulations.
(3) In the performance of his functions under this Act or any other laws, a Departmental Head, including the Departmental Head of Department of Personnel Management and the Secretary, a Provincial Administrator, a head of a statutory body or a head of a government agency must ensure that the staff ceiling and personnel emolument ceiling must be maintained within the prescribed ceilings set by the Departmental Heads of the departments responsible for personnel management and treasury matters respectively.
(4) In the performance of his financial management functions or as a Section 32 Officer under the Public Finances (Management) Act 1995, a Departmental Head, including the Departmental Head of the Department of Personnel Management and the Secretary, a Provincial Administrator, a head of a statutory body or a head of a government agency must ensure that he complies with the requirements of the Public Finances (Management) Act 1995.
(5) A failure by a Departmental Head, including the Departmental Head of the Department of Personnel Management and the Secretary, a Provincial Administrator, a head of a statutory body or a head of a government agency to comply with the requirements of Subsections (3) and (4) is a ground for termination of his contract of employment.
(iv) Procedures regulating revocation of appointment and suspension from office
24. The Auditor-General also becomes subject to procedures relating to revocation of appointment and suspension from office under s 31C (procedures relating to revocation of appointments of departmental heads) and s 31D (procedures relating to suspension from office of appointments of departmental heads), which provide:
31C.
The procedures relating to the revocation of appointments of Departmental Heads referred to in Section 193(1C) (appointments to certain offices) of the Constitution are as follows:—
(a) the Commission—
(i) may, on its own volition; or
(ii) shall, on receipt of a request from the National Executive Council for revocation of the appointment of a Departmental Head accompanied by a written statement by the Minister specifying the grounds for requesting the revocation (being grounds consistent with the grounds for revocation of appointment in a contract of employment entered into by that Departmental Head under Section 28),
refer the matter to the Departmental Head of the Department of Personnel Management—
(iii) to investigate the allegations and circumstances; and
(iv) to report thereon to the Commission within 30 days from the date of reference;
(b) the Departmental Head of the Department of Personnel Management shall—
(i) investigate the allegations and circumstances relating to any matter referred to him under Paragraph (a); and
(ii) report thereon to the Commission within the 30 day period referred to in Paragraph (a)(iv);
(c) the Commission shall—
(i) consider the report made to it under Paragraph (b)(ii); and
(ii) make, or cause to be made, and consider such further investigations (if any) as it considers necessary; and
(iii) on the basis of the report and the results of such further investigations (if any), recommend to the National Executive Council whether or not the appointment of the Departmental Head should be revoked;
(d) where the Commission recommends the revocation of appointment of a Departmental Head, the National Executive Council shall advise the Head of State to revoke the appointment.
31D.
The procedures relating to the suspension from office of Departmental Heads referred to in Section 193(1D) (appointments to certain offices) of the Constitution are as follows:—
(a) the Commission—
(i) may, on its own volition; or
(ii) shall, at the request of the Minister responsible for Public Service matters,
investigate any activities, conduct or performance of a Departmental Head which would constitute grounds for revocation of appointment under a contract of employment entered into by that Departmental Head under Section 28;
(b) where, as a result of its investigation, the Commission is of the opinion that the Departmental Head should be suspended from office it shall so recommend to the National Executive Council;
(c) on receipt of a recommendation under Paragraph (b), the National Executive Council shall advise the Head of State to suspend the Departmental Head from office.
25. It will be observed that the effect of deeming the Auditor-General to be a departmental head is that the Auditor-General is:
26. We consider, in answer to the first part of question 2 of this reference, that, yes, the effect of s 3 of the 2020 amendment Act is to alter the status of the Auditor-General from a constitutional office-holder to that of a departmental head.
Is the 2020 amendment constitutional?
27. By altering, indeed downgrading, the status of the Auditor-General from constitutional office-holder to departmental head, the 2020 amendment to the Public Services (Management) Act subjects the Auditor-General to a regime of supervision and control inconsistent with the general principle of constitutional independence under Part IX of the Constitution.
28. The purpose of Part IX is, through s 223 (general provision for constitutional office-holders) to entrench the independence of all constitutional office-holders. Section 223 states:
(1) Subject to this Constitution, Organic Laws shall make provision for and in respect of the qualifications, appointment and terms and conditions of employment of constitutional office-holders.
(2) In particular, Organic Laws shall make provision guaranteeing the rights and independence of constitutional office-holders by, amongst other things—
(a) specifying the grounds on which, and the procedures by which, they may be dismissed or removed from office, but only by, or in accordance with the recommendation of, an independent and impartial tribunal; and
(b) providing that at the end of their periods of office they are entitled, unless they have been dismissed from office, to suitable further employment by a governmental body, or to adequate and suitable pensions or other retirement benefits, or both, subject to such reasonable requirements and conditions (if any) as are laid down by an Organic Law.
(3) A constitutional office-holder may not be suspended, dismissed or removed from office during his term of office except in accordance with a Constitutional Law.
(4) The total emoluments of a constitutional office-holder shall not be reduced while he is in office, except—
(a) as part of a general reduction applicable equally or proportionately to all constitutional office-holders or, if he is a member of a State Service, to members of that service; or
(b) as a result of taxation that does not discriminate against him as a constitutional office-holder, or against constitutional office-holders generally.
(5) The office of a constitutional office-holder may not be abolished while there is a substantive holder of the office but this subsection does not apply to the abolition of any additional constitutional office created by an Act of the Parliament.
(6) Nothing in this section prevents the making by or under an Organic Law or an Act of the Parliament of reasonable provision for the appointment of a person to act temporarily in the office of a constitutional office-holder.
29. Organic Laws are required to provide security of tenure for constitutional office-holders, including the Auditor-General, by providing that they cannot be suspended, dismissed or removed except in accordance with a Constitutional Law that specifies the grounds of dismissal or removal, the procedures by which they may be dismissed or removed and requires that dismissal or removal only be in accordance with the recommendation of an independent and impartial tribunal (see the Organic Law on Certain Constitutional Office-holders and the Organic Law on the Guarantee of the Rights and Independence of Constitutional Office-holders).
30. Organic Laws are also to guarantee employment or adequate and suitable pensions at the end of a constitutional office-holder’s period of employment. It was the absence of such an Organic Law in the case of the Auditor-General that was the subject of disapprobation by the Supreme Court in Application by Sir Makena Geno (2016) SC1581.
31. There is a prohibition against the abolition of the office of a constitutional office-holder while there is a substantive holder of the office and a prohibition against the reduction of the total emoluments of a constitutional office-holder while they are in office.
32. Downgrading the status of the Auditor-General from constitutional office-holder to departmental head is also inconsistent with the specific statement of independence in s 213(3) of the Constitution that the Auditor-General in the performance of his functions under the Constitution is “not subject to the control or direction of any person or authority”.
33. The phrase “not subject to the control or direction of any person or authority” is defined by schedule 1.19 (independence) of the Constitution:
Where a Constitutional Law provides that a person or institution is not subject to control or direction, or otherwise refers to the independence of a person or institution, that provision does not affect—
(a) control or direction by a court; or
(b) the regulation, by or under a Constitutional Law or an Act of the Parliament, of the exercise or performance of the powers, functions, duties or responsibilities of the person or institution; or
(c) the exercise of jurisdiction under Division III.2 (leadership code), Subdivision VIII.1.B (the Auditor-General), or Subdivision VIII.1.C (the Public Accounts Committee),
and does not constitute an appropriation of, or authority to expend, funds.
34. The 2020 amendment to the Public Services (Management) Act does not involve control or direction by a court, and amounts to much more than a “regulation” of the exercise or performance of the powers, functions, duties or responsibilities of the Auditor-General. It subjects the Auditor-General to supervision and control by persons and authorities, especially the departmental heads of the Department of Prime Minister and National Executive Council and the Department of Personnel Management, in ways that directly contravene the express principle of independence that protects the Auditor-General in the effective performance of the powers, functions, duties and responsibilities of that office.
Answer to question 2
35. No, s 3 of the Public Services (Management) (Amendment) Act 2020, to the extent that it alters the status of the Auditor-General from a constitutional office-holder to a departmental head, is not constitutional.
QUESTION 3: IS SECTION 3 OF THE PUBLIC SERVICES (MANAGEMENT) AMENDMENT ACT 2020 CONSTITUTIONAL IN THAT IT EFFECTIVELY SUBJECTS A CONSTITUTIONAL
OFFICE-HOLDER (THE AUDITOR-GENERAL) TO THE DICTATES OF THE PUBLIC SERVICES (MANAGEMENT) ACT 1995 AND THE PUBLIC SERVICE GENERAL ORDERS?
36. Our answer to this question is driven by our reasons for decision in question 2. The effect of s 3 of the Public Services (Management) (Amendment) Act is to subject the Auditor-General to the dictates of the Public Services (Management) Act 1995 and the Public Service General Orders (made under s 70 of the Act). This is unconstitutional.
Answer to question 3
37. No, s 3 of the Public Services (Management) (Amendment) Act 2020, by subjecting the Auditor-General to the dictates of the Public Services (Management) Act 1995 and the Public Service General Orders, is not constitutional.
QUESTION 4: DOES SECTION 3 OF THE PUBLIC SERVICES (MANAGEMENT) AMENDMENT ACT 2020 COMPLY WITH THE CONSTITUTIONAL REQUIREMENTS OF SECTION 12
OF THE CONSTITUTION IN SO FAR AS IT ATTEMPTS TO ALTER AN ORGANIC LAW, SPECIFICALLY THE ORGANIC LAW ON THE RIGHTS AND INDEPENDENCE
OF CONSTITUTIONAL OFFICE-HOLDERS?
38. This question is unnecessary as we have already concluded that the 2020 amendment is unconstitutional. We invoke Order 4,
rule 18 of the Supreme Court Rules 2012 (a rule made under s 19(4)(c) of the Constitution, in respect of cases and circumstances in which the Court may decline to give an opinion) which states:
The court may decline to give an opinion on the question the subject of the reference or special reference if in [its] opinion the question is trivial, vexatious, hypothetical or unlikely to have any immediate relevance to the circumstances of Papua New Guinea.
39. We decline to answer the question as it is hypothetical and unlikely to have any immediate relevance to the circumstances of Papua New Guinea.
Answer to question 4
Decline to give opinion.
QUESTION 5: DOES SECTION 3 OF THE PUBLIC SERVICES (MANAGEMENT) AMENDMENT ACT 2020 COMPLY WITH THE CONSTITUTIONAL REQUIREMENTS OF SECTIONS 13 AND 14 OF THE CONSTITUTION IN SO FAR AS IT EFFECTIVELY ALTERS THE CONSTITUTION BY:
(a) ALTERING THE CONSTITUTIONAL STATUS OF THE AUDITOR-GENERAL UNDER SECTION 221 OF THE CONSTITUTION, TO BEING A DEPARTMENTAL HEAD UNDER SECTION 22 OF THE PUBLIC SERVICES (MANAGEMENT) ACT 1995?
(b) ALTERING THE GUARANTEED INDEPENDENCE OF THE AUDITOR-GENERAL BY MAKING THE AUDITOR-GENERAL’S ADMINISTRATIVE DECISIONS SUBJECT TO THE REVIEW JURISDICTION OF THE PUBLIC SERVICES COMMISSION?
40. We decline to answer this question for the same reasons given for not answering question 4.
Answer to question 5
Decline to give opinion.
CONCLUSION
41. Question 1, as to whether the Public Services Commission has jurisdiction over the office of Auditor-General, is answered no. Questions 2 and 3, concerning the constitutionality of s 3 of the Public Services (Management) (Amendment) Act 2020, to the extent that it alters the status of the Auditor-General from a constitutional office-holder to a departmental head, are answered no, that provision is not constitutional. We decline to answer questions 4 and 5.
42. In addition to answering the questions posed, we will make declarations to put the issues raised beyond doubt.
ORDER
(1) The questions the subject of this reference are answered as follows:
Question 1: No
Question 2: No.
Question 3: No.
Question 4: Decline to give opinion.
Question 5: Decline to give opinion.
(2) It is declared that the Public Services Commission has no jurisdiction to review personnel matters regarding the office of Auditor-General.
(3) It is declared that s 3(c) of the Public Services (Management) (Amendment) Act 2020, to the extent that it makes the Auditor-General a deemed departmental head, is unconstitutional.
(4) The parties shall bear their own costs of the reference, including all applications and interlocutory proceedings relating to the reference.
Judgment accordingly.
________________________________________________________________
Public Solicitor: Lawyers for the Referrer
Solicitor-General: Lawyers for the Intervener
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