Natural justice in Papua New Guinea is not merely a common-law principle. It has an express constitutional foundation.
The constitutional provision
(1) Subject to any Constitutional Law or Act of the Parliament, the principles of natural justice are the rules of the underlying law known by that name developed for the purposes of the common law.
(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.
Sub-section (1) incorporates the common-law rules of natural justice into the underlying law of Papua New Guinea — and see Order 8 Rule 20A, which prescribes how the underlying law is pleaded.
Sub-section (2) fixes a minimum: the duty to act fairly, and in principle to be seen to act fairly. That is a floor, not a ceiling — more may be required in a particular context.
The opening words of sub-section (1) matter too: the principles operate subject to any Constitutional Law or Act of the Parliament. Where legislation prescribes a procedure, that procedure governs, though it will be read consistently with fairness where possible.
The first rule
- Notice of the case to be met. The person must know what is alleged, with enough particularity to respond.
- An opportunity to respond — in writing or orally, depending on the context and what the empowering provision contemplates.
- Disclosure of adverse material. A decision-maker who relies on material the person has not seen, and had no chance to answer, has not acted fairly.
- A genuine consideration of the response before the decision is made.
Deciding on material the affected person never saw. A report, a complaint, an investigator’s findings — if it influenced the decision and the person had no chance to answer it, that is a breach.
The remedy is not that the material must be ignored, but that it must be put to the person before it is acted on.
What fairness requires depends on the nature of the power, the interest affected, and the statutory scheme. A decision that may end a person’s career or livelihood calls for more than a routine administrative determination.
In Peipul v The Leadership Tribunal [2002] PGSC 1; SC706, the question whether a Leadership Tribunal had acted fairly and reasonably in compliance with the principles of natural justice was squarely in issue on a judicial review of its determination — a tribunal established under the Organic Law on the Duties and Responsibilities of Leadership to investigate allegations of misconduct in office, which had found the leader guilty and recommended dismissal.
The second rule
The second limb of section 59(2) is the appearance of fairness. Actual bias need not be proved; a reasonable apprehension of bias may be enough.
Typical instances: the decision-maker has a personal or financial interest in the outcome; a relationship with a party; has prejudged the matter by public statement; or was involved in investigating the very matter they then decide.
A party who knows of the ground of apprehended bias and says nothing, participating in the hearing and awaiting the outcome, may find that objection difficult to press later.
Where the challenge is to the conduct of a Judge, note the service requirement in Order 16 Rule 5(2) of the National Court Rules 1983: the Notice of Motion must be served on the clerk or Registrar of the court and, where any objection to the conduct of the Judge is to be made, on the Judge.
Sections 37 and 41
Section 37 — protection of the law. Every person has the right to the full protection of the law, and the section then sets out detailed guarantees, principally in criminal proceedings.
Section 41 — proscribed acts. An act that is done under a valid law but is, in the particular case, harsh or oppressive, or not warranted by, or disproportionate to, the requirements of the particular circumstances or of the particular case, or is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having proper regard for the rights and dignity of mankind, is an unlawful act.
It allows an act to be challenged even though the law authorising it is valid and was correctly applied — because of how it operated in the particular case. That is a broader control than natural justice alone, and it overlaps with unreasonableness.
Where a breach of a right or freedom is alleged, Constitution section 57 allows enforcement on the application of any person who has an interest in its protection and enforcement, or on the Court’s own initiative, and section 58 provides for compensation. See human rights proceedings.
How to run the ground
- Identify the procedure the decision-maker was required to follow — from the empowering statute first, then from section 59.
- Say precisely what was not done — which material was not disclosed, which allegation was not put, which opportunity was denied.
- Show it mattered. Explain what the person would have said or produced had they been given the chance.
- Plead it in the statement. Under Order 16 Rule 3(2)(a) the statement must set out the grounds, and under Rule 6(1) no grounds shall be relied on at the hearing except those set out in the statement.
- Verify the facts by affidavit filed before the application is made — Rule 3(2)(b).
Section 59 is not confined to administrative decision-makers. It informs the Court’s own procedure — which is why an applicant for an ex parte order owes a duty of full and frank disclosure, why an ex parte originating summons carries a duty of candour, and why Order 14 Rule 39 requires a contemnor to be informed of the charge and required to make his defence before it is determined.
Sources
- Constitution — ss 37, 41, 57, 58, 59, 155
- National Court Rules 1983 — O 8 r 20A; O 14 r 39; O 16 rr 3, 5, 6
- Peipul v The Leadership Tribunal [2002] PGSC 1; SC706
- Organic Law on the Duties and Responsibilities of Leadership
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.