A Year in the Life of an Australian Member of the PNG Judiciary
Total Page：16
File Type：pdf, Size：1020Kb
A Year in the Life of an Australian Member of the PNG Judiciary JOHN LOGAN SSGM DISCUSSION PAPER 2015/16 In September 2011, the author was one of two Fed- planting gardens. The rear driveway border was the eral Court of Australia judges appointed to the latest part of that project. He said that at his official Supreme and National Courts of Papua New Guinea residence he had some staff whom he thought were (PNG) to sit on civil and commercial appeals. The underemployed at the time so he had asked them article provides a personal account of the author’s to volunteer to build the wall to retain a garden first year as a member of the PNG judiciary. This bed. He added that he had found that they didn’t was an eventful and tumultuous year which saw the know how properly to lay its foundation or align it PNG Supreme Court order that the Hon. Sir Michael so he had been down showing them how to do that Somare be restored to the office of prime minister; and helping. simmering political tensions which followed that deci- Not every chief justice in the common law sion; the arrest of the Chief Justice, Sir Salamo Injia; world has either that inclination or those skills. As I a permanent stay of criminal proceedings against the have come to know though, what I saw that day is a Chief Justice; the enactment of the Judicial Conduct metaphor for Sir Salamo personally and for each of Act 2012 (PNG), which undermined the independ- my other, PNG resident-judicial colleagues. Their ence of the judiciary, and subsequent challenge to the line is true, their foundations are solid, and they are validity of that Act; a further sedition charge being committed to the improvement of their country by laid against the Chief Justice; and a national election. the application of their knowledge and experience. The author explores the impact of these events on the The Independent State of PNG lies immediately PNG judiciary. He also discusses options relating to to the north of the eastern Australian mainland, the proposed establishment of a permanent Court of separated by the Torres Strait. PNG is Australia’s Appeal and an ultimate appellate court for PNG . nearest neighbouring country, a mere four kilo- The rear driveway of the Law Courts complex at metres away from Saibai Island, the northernmost Waigani, Port Moresby, exits onto Sir John Guise Australian island in the Torres Strait. PNG com- Drive.1 In the late afternoon of February 2012, as I prises the eastern half of the island of New Guinea,2 was being driven down that driveway, en route back together with many offshore islands to the east in to my hotel after a day sitting in court, I noticed a the Bismarck and Solomon seas. It has a population stocky man in rolled-up shirt sleeves and dunga- of about 7,060,000 people,3 the next largest after rees supervising a group of workers and laying out Australia in the South Pacific area.4 a plumbline for a rock retaining wall, then in the The southern half of PNG was once the early stages of construction on the border of the 19th-century British Protectorate of Papua, driveway. He looked very like my new colleague, Sir administered by Australia from 1906. The Salamo Injia, the Chief Justice of Papua New Guin- northern half and the offshore islands were ea (PNG), then of but recent acquaintance. once the 19th-century German colony of New On arriving at court the following morning, I Guinea, which became an Australian League of encountered the Chief Justice. I asked him whether Nations mandated territory in the it was indeed he who had been working on the aftermath of the First World War. wall. He confirmed that it was. He said that when They were administered together he had assumed office the courthouse surrounds as an external territory of Australia were stark so he had decided to commence following the Second World War. State, Society & Governance in Melanesia ssgm.bellschool.anu.edu.au John Logan PNG became independent from Australia on In the result, two judges of the Federal Court, 16 September 1975. It is a constitutional monarchy Justice Berna Collier and I, came to be appointed with Queen Elizabeth II, in her capacity as Queen to the Supreme and National Courts of PNG on of PNG, as its Head of State. PNG has a unicameral 27 September 2011. The understanding between system of responsible government. The Queen is the courts is that we shall sit in the Supreme Court represented by a resident governor-general. PNG’s hearing civil and commercial appeals, rather than post-independence constitution provides a separa- criminal appeals or constitutional references. The tion of powers in the Westminster model.5 occasion for that understanding lies in the possibil- PNG is experiencing a period of major economic ity that knowledge of local cultural norms may be development, led by its mining and resources sector.6 important in some criminal cases and sensitivity On 7 June 2010, the Hon. Ano Pala, then min- to any suggestion, however misconceived, that the ister for justice and attorney-general for PNG, outcome of such a reference might be the result of a wrote to his then Australian counterpart, the Hon. foreign influence. Robert McClelland, supporting a proposal which The intention was that that Justice Collier and I had been made to their respective governments would alternate in undertaking duty in PNG to the the previous year by the Chief Justice of PNG, Sir end that we would each undertake three deploy- Salamo Injia, and then Chief Justice of the Federal ments, each of one week’s duration per year. That Court of Australia, the Hon. Michael Black. In his would mean that one of us would be present dur- reply, the Australian attorney-general confirmed ing each sitting of the Supreme Court during the that this support was reciprocated by the Australian year. As it transpired, Justice Collier was only able Government, which viewed the proposal as consist- to undertake one period of duty in the latter half ent with the Papua New Guinea–Australia Law and of the year. To compensate, and in circumstances Justice Partnership (PNGLJP). I shall shortly relate, I undertook an additional By this stage, Chief Justice Black had reached week’s duty in PNG in 2012. the mandatory retiring age for Australian High In time perhaps our duties may occasionally Court and Federal Court judges (70 years). His suc- extend to undertaking some work in the commer- cessor, the Hon. Patrick Keane, maintained the Fed- cial list in the PNG’s National Court. The constraint eral Court’s support for the proposal. Chief Justice with that is that our primary commissions are as Keane sought expressions of interest from the Fed- Australian Federal Court judges and the demands eral Court judges to be considered for appointment of that and other Australian appointments which to the Supreme and National Courts of PNG. we each hold mean that there is limited scope for Limiting factors for some judges who would the assumption of additional work in PNG. The otherwise have been interested in such an appoint- recent relaxation of the judicial retirement age in ment proved to be the combination of the require- PNG may offer scope for additional appointments ment under PNG law that the maximum term of from the Federal Court, but there remains limited judicial office for non-PNG citizens is three years7 capacity within the present judicial establishment of and the then requirement that, ordinarily, a judge the Federal Court for the assumption of additional was not to be appointed for a period that would commissions by the judges. extend beyond his or her 60th birthday.8 Sir Salamo The terms of our appointment include a car Injia and Justice Hartshorn, who is responsible for and driver at call with an armed member of the the ‘commercial track’ case list at Waigani, visited Royal Papua New Guinea Constabulary (RPNGC) Australia to interview those who had expressed as escort. The latter is a precautionary measure. interest. Following this, Sir Salamo made a recom- Law and order in Port Moresby is not all that PNG mendation to the Judicial and Legal Services Com- or its government would wish for, the product mission, which is the appointing authority under of a drift of population from villages to the city, the PNG constitution for all judges other than the stretched police resources and insufficient employ- chief justice.9 ment opportunities. With growing prosperity, that SSGM2 Discussion Paper 2012/1 State, Society http://ips.cap.anu.edu.au/ssgm & Governance in Melanesia SSGM Discussion Paper 2015/16 problem should diminish but, at present, prudence the prime ministership of Mr O’Neill were lawful. dictates that we live in a guarded hotel compound Instead, I want to focus on the year as it affected and travel with an escort. the judiciary. We took the required oaths of office and alle- It fell to me to undertake the initial deployment. giance before the Governor-General, Sir Michael So it was that in February 2012, I became the first Ogio, at Government House, Port Moresby, on 1 serving Australian judge to sit in PNG since inde- December 2011 at a ceremony witnessed by the pendence. As some with an intimate knowledge Chief Justice, the Deputy Chief Justice and most of PNG’s post-independence history might know, of the other judges of the Supreme and National judges of the former Australian Territory of PNG, Courts.