Two short sections in Part XII of the Police Act 1998 do most of the work of defining what a member of the Force may do, and what happens when they are sued for doing it.
Section 140 — the powers of a constable
A member of the Force has the same powers, duties, rights and liabilities as a Constable under the underlying law, except so far as they are modified by or under an Act.
The underlying law is the common law and customary law of Papua New Guinea, as provided for by section 20 of the Constitution and Schedule 2, and by the Underlying Law Act 2000.
So section 140 does not enumerate police powers. It incorporates the office of constable and its incidents, then makes them subject to modification by statute.
Note that the section confers liabilities as well as powers. A member is personally liable for wrongful acts in the same way as any constable, subject to section 141.
- Arrest — the Arrest Act (Chapter 339) and the Criminal Code Act (Chapter 262);
- Search and seizure — the Search Act (Chapter 341);
- Bail — the Bail Act (Chapter 340);
- Electronic evidence — Part IV of the Cybercrime Code Act 2016, including search warrants, preservation notices and production orders;
- The rights of an arrested person — sections 37 and 42 of the Constitution.
Each of those is a modification “by or under an Act” within the closing words of section 140.
The Arrest Act (Chapter 339), the Search Act (Chapter 341) and the Bail Act (Chapter 340) are not currently available on PacLII, so no links are given for them here.
Section 141 — protection for acting on a warrant
Where an action is brought against a member of the Force for an act done in obedience to a warrant or order of a Magistrate or of a commissioned officer of the Force having authority over the member —
(a) the member is not responsible for (i) irregularities in the issue of the warrant or order; or (ii) want of jurisdiction in the Magistrate or commissioned officer who issued it; and
(b) on production of the warrant or order and proof that —
(i) the person is reputed to be, and acts as, a Magistrate or commissioned officer possessing jurisdiction in the case, and in the case of a commissioned officer, has authority over the member; and
(ii) the act complained of was done in obedience to the warrant or order,
a verdict shall be returned for the member, and the member shall be awarded the costs of suit.
The rationale is straightforward: a member executing a warrant is not in a position to audit the process by which it was issued, or to determine whether the issuing officer had jurisdiction. Requiring them to do so would make lawful execution impossible.
So the section protects against two specific defects:
- Irregularities in issue — procedural defects in how the warrant was obtained;
- Want of jurisdiction — the issuing officer lacked authority to issue it.
Note that the outcome is mandatory: “a verdict shall be returned” for the member, with costs. Once the proofs in paragraph (b) are made out, the court has no discretion.
The reference to a person “reputed to be, and acts as” a Magistrate or commissioned officer is deliberate. The protection applies on the appearance of authority, not on its actual existence.
What section 141 does not protect
1. It protects execution, not excess. The act complained of must have been done in obedience to the warrant or order. Conduct beyond what the warrant authorised is outside the section.
2. There must be a warrant or order. Most policing is not done under warrant. An arrest without warrant, a search without warrant, or the use of force in an ordinary encounter attracts no section 141 protection.
3. It does not cover unlawful orders. The order must be one of a commissioned officer having authority over the member. And section 20(1)(a) makes it a disciplinary offence to disobey a lawful order — the qualification is deliberate. A member is not obliged to obey an unlawful order, and section 141 would not protect the act if they did.
4. It is a civil protection. Section 141 addresses an action brought against a member. It does not bar a criminal prosecution, and it does not bar disciplinary proceedings under Part IV.
The discipline code as the counterweight
Several paragraphs of section 20(1) target the exercise of police powers:
- (n) unreasonably exercises his powers of arrest or search;
- (o) without good and sufficient cause discharges a firearm;
- (p) uses unnecessary force on any person in the execution of his duty;
- (j) while on duty acts offensively towards any member of the public;
- (u) by carelessness or neglect, permits a prisoner to escape.
These are the provisions under which a complaint by a member of the public about police conduct is dealt with internally. A serious instance is charged as a serious offence under section 23, and may result in dismissal under section 26(1)(g).
The internal route is separate from, and does not displace, a civil claim against the member and the State, a criminal prosecution, or an application under section 57 of the Constitution for enforcement of guaranteed rights.
Sources
- Police Act 1998 — ss 16, 20, 23, 26, 140, 141
- Constitution — ss 20, 37, 42, 57, Schedule 2; Criminal Code Act (Chapter 262)
Before relying on anything here, read the current text of the Police Act 1998 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.