What Does Section 41 Do About Acts That Are Harsh or Oppressive?

Section 41 of the Constitution has no counterpart in most legal systems. It accepts that a law may be entirely valid and that an official may be acting squarely within it — and still makes the particular act unlawful.

It targets the act, not the law

This is the distinction that makes section 41 useful. Challenging a law requires showing it fails section 38 or is otherwise unconstitutional — a heavy task with wide consequences. Section 41 asks a narrower and more answerable question: was what was done to this person, in this case, harsh or disproportionate?

The law stands. The act does not.

Three independent limbs

A claimant needs only one.

• Harsh or oppressive. The plain-language limb. It reaches conduct that is excessive, humiliating or crushing in its effect on the person.
• Not warranted by, or disproportionate to, the requirements of the particular circumstances. A proportionality test in terms — and expressly directed at the particular circumstances, not at the general run of cases.
• Not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind. The same standard used in sections 38 and 39, applied here to a single act. Section 39(3) lists the material a court may consider — including the National Goals, the UN Charter, the Universal Declaration of Human Rights, and decisions of international human rights courts.

Who proves what — section 41(2)

The burden of showing that paragraph (a), (b) or (c) applies is on the party alleging it — and may be discharged on the balance of probabilities.

Note the contrast with section 38(3), where the State bears the burden of justifying a restricting law. Under section 41 the claimant carries the burden, but only to the civil standard. That is a realistic threshold for a person complaining about how they were treated.

Section 41(3) — nothing else is displaced

Nothing in section 41 affects the operation of any other law under which an act may be held to be unlawful or invalid. Section 41 adds a ground; it removes none.

Where section 41 does work

• Policing. An arrest that was authorised but carried out with excessive force, or a lawful search conducted so as to destroy property or humiliate a household.
• Detention. Lawful custody in conditions or for a length that becomes oppressive — often pleaded with section 36 and section 37(3).
• Administrative decisions. A power exercised in a way out of all proportion to the problem — a licence cancelled over a trivial breach, an eviction executed without notice.
• Enforcement operations. Lawful objectives pursued by disproportionate means.
• Sentencing. A penalty that is within the law but crushing in the particular case: see SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PGSC 13; [1984] PNGLR 314.

Damages — and one limit

An unlawful act under section 41 can found relief under section 57 and damages under section 58. But section 58(5) contains an important exception:

The shield is narrow. It protects only the individual officer, only where section 41 is the sole source of unlawfulness, and only where a genuine belief that the law required the action is proved. It does not protect the governmental body, which remains liable under section 58(4).