Yes. The Search Act (Chapter 341) says so expressly, and the Constitution supplies a parallel remedy. As with claims over an unlawful arrest, what usually defeats a claim is not the law but a deadline.
The statutory claim: section 17
Section 17(1) is broad. A person who:
- exercises a power to make a search in breach of this Act; or
- exercises any other power conferred by the Act in breach of it; or
- performs a duty imposed by the Act in breach of it; or
- fails or refuses to perform a duty imposed by the Act,
may be liable in damages to the person aggrieved by that breach.
Each of these is a duty imposed by the Act, and a breach of any of them can found a claim:
- searching without a power under sections 3, 5 or 6;
- using greater force than is reasonable (ss 4(3), 6(4), 9);
- searching a woman otherwise than by or in the presence of an adult female (s 4(4));
- failing to conduct a search with due regard to decency (s 4(2));
- interfering with a structure beyond the least extent necessary with the least damage (s 9(1)(a)(ii));
- failing to restore the place to its previous cleanliness and neatness (s 9(1)(b));
- failing to enter seized property in the register (s 12); and
- on a village warrant, failing to endeavour to obtain the co-operation of the customary leaders where practicable (s 6(3)).
Where to bring it, and what you can get
Under section 17(2) the action may be brought in the National Court, or in a District Court within the limits prescribed by section 21 of the District Courts Act. Under section 17(3), a court may award exemplary damages — damages beyond compensation, marking the court’s disapproval.
One caution carried over from the bail series: section 21 of the District Courts Act removes from a District Court’s jurisdiction actions for illegal arrest, false imprisonment and malicious prosecution. For anything substantial, the National Court is the safer forum.
The constitutional route
Section 17(4) makes the statutory remedy in addition to and not in derogation of the Constitution or any other law dealing with the enforcement of a constitutional right. That matters, because the constitutional route is the one PNG courts most often use.
- Section 44 — freedom from arbitrary search and entry.
- Section 49 — the right to reasonable privacy in private and family life, communications, personal papers and effects.
- Section 53 — protection from unjust deprivation of property, where property is taken or destroyed.
- Section 41 — even an act authorised by law is unlawful if, in the particular case, it is harsh or oppressive, disproportionate, or otherwise not reasonably justifiable.
- Section 57 — the National or Supreme Court may protect and enforce a Basic Right, including on its own initiative.
- Section 58 — compensation, and where the court thinks it proper, exemplary damages.
In Kangual Kwialu v Dumop Dage (2016) N6270 liability was established against the State for breaches including the right to freedom from arbitrary search and entry under section 44 and protection against unjust deprivation of property under section 53. Police raid claims have also been run under the Wrongs (Miscellaneous Provisions) Act — see Philip Kunnga v The State (2005) N2864 and Eton Pakui v The State (2006) N2977.
Suing the employer or the State
Section 18 matters where the searcher was employed. For the purposes of any civil proceeding, where making a search would otherwise be within the scope of a person’s employment, the mere non-compliance by an employee with a provision of this Act does not, of itself, take the act outside the scope of that employment.
In other words, an employer — including the State — cannot escape vicarious liability merely by pointing out that the employee broke the Act. That is exactly the situation the section is drafted for.
1. The six-month notice. Under section 5 of the Claims By and Against the State Act 1996, no action against the State lies unless written notice of intention to make a claim is given within six months of the occurrence, to the Departmental Head responsible for justice matters or the Solicitor-General. See the notice rules explained in full.
2. Not naming the officers. Exemplary damages have repeatedly been refused where the individual officers were not named as defendants. Get names and regimental numbers, and name them.
What the evidence needs to be
- Times and dates — arrival, departure, and when each thing happened.
- Names, ranks, unit and vehicle registrations.
- The warrant — or the absence of one, and what power was claimed instead.
- Photographs of damage and of the state of the premises before and after.
- The section 12 register entry for anything seized — or proof that no entry was made.
- Medical reports for any injury, obtained promptly.
- Witnesses, including neighbours and, for a village search, the customary leaders.
- An itemised list of loss, household by household where a community is affected.
What to do first
- Write the account down the same day, in date and time order.
- Get medical attention and a written report if anyone was hurt.
- Collect the evidence above while it still exists.
- See a lawyer immediately about the six-month notice — before anything else.
Limitation periods apply and the notice requirement is a condition precedent to suing the State. Speak to a lawyer or the Office of the Public Solicitor without delay.
Sources
- Constitution of the Independent State of Papua New Guinea — PacLII (sections 41, 44, 49, 53, 57, 58)
- Wrongs (Miscellaneous Provisions) Act (Chapter 297) — PacLII
- Kangual Kwialu v Dumop Dage (2016) N6270 — vLex
- Philip Kunnga v The Independent State of Papua New Guinea (2005) N2864 — vLex
- Eton Pakui v The Independent State of Papua New Guinea (2006) N2977 — vLex
- Jackson Tuwi v Kenny Taiya (2010) N3901 — vLex
The Search Act (Chapter 341) is not carried in PacLII’s consolidated Acts database or on vLex at the time of writing. Read each judgment in full before relying on it — see how to read a PNG case.