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Judicial Responses to Legislative Attempts to Oust the Judicial Review Powers of the Courts in Papua New Guinea [1997] MLJ 2; [1997] 25 MLJ 15 (1 January 1997)

Judicial Responses To Legislative Attempts To Oust The Judicial Review Powers Of The Courts In Papua New Guinea

George M S Muroa[&]

A. Introduction

Legislatures usually establish various administrative tribunals or non-judicial bodies (hereafter also referred to as “administrative bodies” or “inferior tribunals”) as well as courts or judicial bodies. Examples of administrative bodies or inferior tribunals would include Government Ministers, the Minimum Wages Board or Tribunal, the Worker’s Compensation Tribunal and the Public Service Appeals Board. Often these bodies are established to deal with specific administrative or quasi-judicial matters. For instance, the Minister for Foreign Affairs has powers under the Migration Act (Ch 16) to decide whether to grant or refuse to grant a visa to a foreigner to enter the country, or to cancel it if such person breaches conditions of the visa. The Minimum Wages Tribunal deals with minimum wages claims by workers. The Worker’s Compensation Tribunal deals with compensation claims by workers who are injured during the course of their duties, while the Public Service Appeals Board deals with appeals from public servants against disciplinary actions taken against them by their employers. On the other hand, courts tend to be mainly concerned with criminal matters in the first instance, as well as disputes in civil matters such as breach of contracts, actions in tort, divorce, custody, and maintenance, trespass etc, that are brought before them for adjudication.
Commonly, the powers and functions of the different administrative bodies or inferior tribunals are defined in the particular legislation under which they are established. Under normal circumstances, the courts of law would supervise the exercise of the powers by the tribunals to ensure that they act within the scope of the powers vested in them by their enabling legislation. Sometimes, however, the legislature may confer absolute discretionary powers on the tribunals, and purport to exclude the courts from performing their usual function of supervising and reviewing the validity or otherwise of the exercise of such powers by the tribunals. For instance, the legislature may, by inserting a provision in the enabling legislation, prevent or purport to prevent aggrieved parties from appealing or making an application to the court for a review of a decision of the tribunals. Another way is by imposing a time limit within which a certain action is to be taken so that if the action is not taken within the prescribed time limit, the aggrieved person will be barred from seeking any relief from the courts.
Where the legislature seeks to oust the jurisdiction of the courts to supervise the exercise of powers by the tribunals, the courts would normally not look kindly upon such legislation. Consequently, the courts have developed various counter measures to safeguard themselves against legislative encroachment on judicial powers to review the exercise of the powers by the tribunals. This paper examines attempts made by the legislature in Papua New Guinea in the various statutes dealing with land matters (hereafter referred to as “acquisition statutes”) to oust jurisdiction of the courts, and how the judiciary has responded to these incursions into its jurisdiction to counter these legislative attempts.

B. Legislative Attempts to Oust the Court’s Jurisdiction

There are many ways by which the legislature may attempt to oust the review jurisdiction of the courts through the enactment of acquisition statutes. Among these are the imposition of statutory time limits and the conferring of discretionary powers on administrative authorities or tribunals over matters which are of an administrative, as opposed to judicial, nature.

1. Imposition of Statutory Time Limits

Acquisition statutes usually impose time limits within which land owners or authorities acquiring land must act. For instance, under s 13 of the Land Act 1996 and s 8 of the Lands Acquisition (Development Purposes) Act (Ch 192)[1] (hereafter “Lands Acquisition Act”), the land owner, who is served with a notice to treat, is required to respond to the notice within two months, whereas under s 3 of the Land (Underdeveloped Freeholds) Act (Ch 193) the land owner upon being served with a development notice is to act within three months. A notice may be served on the land owner in a number of ways, including publication in the National Gazette or newspapers, broadcasting on radios and television, delivery by hand to affected persons and displaying it on conspicuous places at the place where the land is situated.

The imposition of time limits by acquisition statutes could cause injustice to the land owner. For instance, most of the customary land owners in Papua New Guinea[2] are still living in very remote areas with poor communication services and no accessible roads, making it almost impossible for them to respond within the prescribed period. It is foreseeable, therefore, that any such notice may not reach the owners or, if it does, the owners may not have sufficient time to respond to it within the prescribed period. Where the land owners’ failure to act within the time limit is due to circumstances beyond their control, the question then arises as to whether or not they have a right to seek any court relief and, if so, what nature is this to take. It appears that the only relief available to them under those circumstances is the right to apply to the National Court for an extension of the time limit. Such an application may be made by a Notice of Motion, with a supporting affidavit setting out the circumstances which prevented them from complying with the time limit requirement. In such cases, the National Court has a discretion to grant extensions of time limits imposed by statutes so as injustice is not done in the case. In State v Giddings [1981] PNGLR 84,[3] an application for a writ of certiorari to quash the decision of the District Land Court was made outside the statutory time limit due to circumstances beyond the applicants’ control. It was held by Kearney Dep CJ that the National Court has unfettered discretion to extend time limits under the Rules of the National Court, provided the applicants can make out a substantial case that injustice may occur if the court did not grant the application. It must, however, be exercised judicially and in accordance with what is just and proper.[4] In other words, like all statutory discretions, it must be exercised in accordance with law; it cannot be exercised in bad faith or for some irrelevant purpose.[5]

In Dent v. Minister for Lands [1981] PNGLR 488,[6] the plaintiff was granted a government lease on the condition that he would effect certain improvements thereon. The land was subsequently forfeited on the basis that the plaintiff had not complied with the condition to effect the improvements on the land within the time limit stipulated in the lease. The plaintiff applied to the National Court outside the statutory time limit for an appeal against the forfeiture under the Land Act 1962 or a judicial review under the Rules of the National Court. The plaintiff argued that he had a genuine reason for not effecting improvements within the time limit, as he was carrying out preliminary work which was necessary before effecting actual improvements in pursuance of the terms of the lease. The court, in exercising its constitutional powers under s 155(4) of the Constitution, granted the application, holding that the plaintiff had a good reason for not complying with the statutory time limit, and that to do otherwise would cause injustice to him. The court, therefore, granted the extension of time even though the application was made outside the statutory time limit for an appeal or a review.

The point to note in the Giddings and Dent cases is that the applicant seeking relief must establish that the delay or failure to exercise other remedies was not the result of his or her own act or omission. Thus, if the owners of the land to which the notice to treat or the development notice applies did not respond to the notice within the specified time because of the poor communication services or remoteness of their community in the country, it would be just and proper for the National Court to grant the extension of the statutory time limit imposed by any acquisition statute. In other words, if failure by the applicant to comply with the statutory time limit is due to circumstances beyond the applicant’s control (as in the Giddings case), or is based on genuine reasons (as in Dent), the court would hold that it has unfettered discretion to extend time limits imposed by acquisition statutes so that injustice is avoided.
Although the Land Act 1996 and Lands Acquisition Act establish time limits subsequent to the service of the notice to treat, neither Act establishes a time limit within which the government must complete the acquisition. All that the two Acts contain are express provisions fixing the date of the Gazette notice as the date of acquisition.[7] This could cause injustice as years may pass before the procedure for the acquisition is effected.[8] There appears to be no authority which would, in normal circumstances, enable the court to compel the government to decide whether or not to proceed with an acquisition once the notice to treat has been served. A lengthy delay in completing an acquisition could be interpreted, however, as evidence that either the purpose of the acquisition did not exist at the time of service of the notice to treat, or it had since ceased to exist. If so, the validity or continuing operation of the notice to treat could be questioned. The land owner in this instance may be entitled to equitable relief or compensation. However, such relief is subject to certain qualifications, as demonstrated by the decision in Simpson Motor Sales (London) Ltd v Hendon Corporation [1964] AC 1088.[9] In that case, there was a significant delay in acquisition after the notice to treat was served and the owners of the land sought equitable relief. Lord Evershed held that those seeking such relief would need to establish that there had been, on the part of the acquiring authority, something in the nature of bad faith, some misconduct or abuse of power, and/or that the owners or those seeking the relief have been placed in an unfair position because of the long period which has elapsed since the service of the notice to treat.[10] In other words, delay by the acquiring authority in acquiring the land is not a sufficient ground to disentitle it from proceeding to acquisition if it was based on good conscience unless those seeking the relief can establish one or both of the above elements.

Unlike the Land Act 1996 and the Lands Acquisition Act, the Land (Underdeveloped Freeholds) Act (Ch 193) establishes a time limit subsequent to the expiration of the period specified in the notice, within which the government must complete the acquisition (see s 9(3)). It imposes a six months time limit. The time limit in this case has a double effect. First, the government must complete the acquisition within six months after the period specified in the notice has expired, not at the end of the six months. Secondly, that if the government has failed to complete the acquisition within six months, it would be seen as a waiver of the government's right to acquire land. It appears, therefore, that any acquisition subsequent to the expiration of the six months would not be valid, as the government would no longer have the power to do so. This situation differs from that in Simpson [1964] AC 1088 in that, like the Land Act 1996 and the Lands Acquisition Act (Ch 192), the acquisition statutes in that case did not impose any time limit within which the acquiring authority must complete the acquisition. As a result of this, the delay by the acquiring authority in the Simpson case to acquire the land did not prevent them from proceeding with the acquisition. However, the Simpson case was an example of a situation where the delay on the part of the acquiring authority was based on good conscience and no detriment was suffered by the owners due to the delay. Otherwise, equitable relief would apply in favour of the land owners.

2. Discretionary Powers of the Minister to Acquire Land

The government’s power to take land from the private land owner is usually exercised by some individual or authority on its behalf.[11] In some instances, acquisition statutes would confer absolute discretion on such individual or authority in respect of the exercise of the power. For instance, s 7 of the Lands Acquisition Act (Ch 192) confers absolute discretionary power on the Minister to acquire land by compulsory process. It provides that:

“Notwithstanding anything in any other law, where in the opinion of the Minister it is necessary to do so for the purposes of this Act, the Minister may acquire the land by compulsory process.”

The words “in the opinion” indicate that the Minister has a discretion to decide on his or her own accord whether land is to be acquired, without taking advice from any person or authority. A discretionary power implies freedom of choice; the competent authority exercising discretion may decide whether or not to act.[12] For instance, the Minister for Lands may decide whether to purchase lands for public purposes in the National Capital District and, if so, how to act (eg from whom should the land be acquired; and how much land should be bought). Discretionary powers, however, are normally accompanied by express or implied duties. For instance, the Minister for Lands may have a discretion to attach such conditions as is thought fit when granting a license to occupy government land, but the Minister will nevertheless be under a legal duty to exercise a genuine discretion in each individual case, and not fetter that choice by adopting rigid rules. As well, the conditions imposed must not be irrelevant to the purposes for which the power was conferred.[13] It is clear, therefore, that in practice, duties and powers (almost) always co-exist, in that seldom does a public authority have a discretion without a duty upon it to perform certain acts or not.

There is no provision in the Lands Acquisition Act which would allow for checks to be made on the Minister’s power to ensure that the power is exercised in good faith. However, it could be argued that, like all statutory discretions, the Minister will have to exercise the power in accordance with law. Thus, in Mudge v Secretary for Lands [1985] PNGLR 387, where similar discretionary power vested in the chairman of the Land Board under s 9 of the Land Act (Ch 185)[14] was abused, the court observed that the phrase “in his opinion” indicates that there is a discretionary power vested in the official concerned, “but like all other statutory discretions, it must be exercised in accordance with the law. It cannot be exercised in bad faith or for some irrelevant purpose, but be exercised in accordance with the objects of the Act”. It can be concluded therefore that the Minister must exercise the discretion in good faith for the purposes of the Lands Acquisition Act.[15]

Where acquisition statutes permit acquisition of private land by compulsory process, in most cases they set out the procedural requirements which must be adhered to by the Minister. Sometimes, however, such statutes may provide that the Minister may dispense with the procedural requirements by certifying that there are special reasons why the procedural requirements should not apply. If so, the court can review the exercise of the Minister’s discretion to ascertain whether the reasons stated by the Minister are indeed special reasons consistent with the object and purpose of the Act. In Gumanch Plantations Pty Ltd v Thomas Kavali (1980),[16] the plaintiff was granted an ex parte injunction restraining the Minister for Lands and the State from acting on a notice of compulsory acquisition in pursuance of the Lands Acqusitions (Development Purposes) Act 1974. The defendants applied for the ex parte order to be set aside, arguing that the Minister had a discretion to dispense with the procedural requirements under s 8 of the Act if he were of the opinion that there were special reasons why procedural requirements should not apply, and that the court could not go behind the action of the Minister to ascertain whether such special reasons existed or not. Sections 8(1)-(4) of the Act set out in detail the procedures to be complied with when land is being compulsorily acquired. By s 8(5), the procedures set out in ss 8(1)-(4) do not apply “in a case where the Minister certifies that there are special reasons why the section should not apply and the Minister specifies those reasons in his certificate”. In the instant case, the special reasons specified in the Minister’s certificate were that “the said land is urgently required for the purpose of distribution to the people of the villages nearby and negotiations for the purchase of this land from the owners have been unsuccessful”.

It was held that the National Court can review the reasons specified, not to ascertain whether they exist or not but in order to assess whether they are special reasons having regard to the object and purpose of the Act. It should be noted that in this case, the court was able to review the Minister’s decision because s 8(5) required the Minister to specify the reasons for the decision to waive the procedural requirements. There would be little purpose in requiring the Minister to specify reasons, if the matter were entirely one for the Minister’s own discretion and in which there was no scope at all for impugning the reasons on which the action was purportedly based. As noted, the need for the Minister to specify the special reasons was the main reason which led the court to look behind the notice to ascertain if the reasons were in fact special. It is submitted that, even if the Minister was under no obligation to specify any reasons, the court should not be prevented from enquiring into the reasons for dispensing with the need for compliance with the procedural requirements, particularly where the decision of the Minister adversely affects the interest of the private land owner.
In cases where statutes confer discretionary powers on Ministers, the question arises as to whether the court should interfere with the exercise of power in relation to matters of an administrative, as opposed to judicial, nature. Such a question often arises in Papua New Guinea in migration cases. The Migration Act (Ch 16) confers absolute discretionary power on the Minister for Foreign Affairs to act on matters relating to the grant or revocation of an entry permit or to the deportation of any non-national, and expressly purports to oust the jurisdiction of the National Court from reviewing such actions.[17] Thus in Premdas v The State [1979] PNGLR 329, the Minister for Foreign Affairs and Trade, exercising powers under the Migration Act 1963 (as amended), revoked the appellant’s permit to enter Papua New Guinea and sought to deport him. The appellant applied to the Committee of Review to review the Minister’s decision, but the Committee rejected the application and confirmed the revocation without allowing the appellant to appear in person before it. The appellant commenced proceedings in the National Court seeking a declaratory order that his constitutional rights had been violated and they were in need of protection and enforcement. The National Court granted an interlocutory order to stay the deportation order, and referred the question of constitutional interpretation to the Supreme Court.

The Supreme Court, in response to s 61AA of the Migration Act 1963 (as amended),[18] which purported to oust the jurisdiction of the courts, held that the National Court’s power of review is related to the exercise of judicial authority. The exercise of power by administrative bodies is not normally regarded as an exercise of judicial authority. A power to review any exercise of judicial authority does not extend to the exercise of power by administrative (non-judicial) bodies. Insofar as s 61AA of the Migration Act is concerned, therefore, it excludes an appeal to any court by way of review. It does not, however, trespass upon a grant of power by the Constitution itself as to review of the exercise of judicial authority.[19]

Sometimes, as the Supreme Court noted, administrative bodies are required by their creating statutes to act judicially. In such cases, the court would invoke its constitutional power of review and review the exercise of power by administrative bodies. In this respect, the Constitution specifically vests power in the National Court to enforce the Constitution under ss 22, 57 and 58; and there is no provision for that power to be invaded in any way by an Act of Parliament. Thus, where an enforcement of any provision of the Constitution or right granted by the Constitution is sought, s 61AA, insofar as it purports to bar any challenge to a decision, could not prevail. It could not, therefore, operate to prevent the existence of rights sought to be declared being protected and enforced.
On the issue as to whether s 61AA was unconstitutional, the court held that such provisions are not unconstitutional, but they cannot prevent the jurisdiction of the National and Supreme Courts being invoked in support of alleged constitutional rights and against alleged breaches of the Constitution.[20] The court, however, held that where the Minister’s exercise of discretion to revoke an entry permit and deport aliens is at issue, the procedure involved not judicial but administrative functions. The question of rights does not arise or apply as the Minister is acting in an executive (or administrative) and not a judicial capacity; the exercise of discretion in those matters is therefore unexaminable by the court. In particular, the principles of natural justice are held inapplicable in proceedings under the Migration Act regarding the revocation of an alien’s entry permit and an order for his or her deportation. The principle that, in immigration cases, “rights” are not in question when deportation of aliens is being considered also applies in the United Kingdom,[21] Canada[22] and Australia,[23] and indeed the courts in Papua New Guinea refer to the decisions in these countries to develop the underlying law[24] for Papua New Guinea. In the result, the Supreme Court in Premdas [1979] PNGLR 329 held that the National Court’s interlocutory order should be dissolved.

In Valentine v Somare [1988-89] PNGLR 51, the National Court, when dealing with a deportation issue, described the exercise of ministerial discretion as a sensitive area of the law as it is the sovereign power of the people exercised through the government to allow entry of aliens to Papua New Guinea, and immigration is a jealously guarded privilege, not a right.[25] An alien’s permit to enter and remain in the country does not itself confer rights; it only confers a licence to remain, revocable at any time by executive (or administrative) act. Hence, a licence to remain could not be changed into a right to remain. Otherwise, it would make nonsense of the sovereign power of the people exercised through their government to allow entry of aliens into the country.[26] The above is based on the principle expounded in the Canadian case of Attorney-General for the Dominion of Canada v Cain [1906] AC 532 that:

“One of the rights possessed by the supreme power in every State is the right to refuse to permit an alien to enter that State, to annex what conditions it pleases to the permission to enter it, and to expel or deport from the State, at pleasure, even a friendly alien, especially if it considers his presence in the State opposed to its peace, order, and good government, or to its social or material interests.”[27]

A test formulated in the Premdas [1979] PNGLR 329 case to enable the court to enquire into ministerial administrative action in immigration cases is whether the Minister acted reasonably in the circumstances, having regard to the policy of the Migration Act, on the one hand, and the various provisions of the Constitution, on the other. While relying on the authority of a licensing case (not migration) of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, where an abuse of a discretionary power was alleged, the Supreme Court held that where an administrative authority is granted an absolute discretion by law, it cannot be questioned in any court of law. The decision of the authority, however, can be upset only if it is proved to be unreasonable. The term “unreasonable” means:

“that it must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body could have come to. It is not what the court considers unreasonable, a different thing altogether.”[28]

According to the 1973 Commission of Inquiry into Land Matters (hereafter “CILM”), the courts and the Parliament of Papua New Guinea should provide effective checks on the government’s power of eminent domain, especially under the circumstances such as those of the Minister in the case just outlined. It recommended that provisions be made in the legislation to allow for the court to check the facts surrounding a compulsory acquisition to see if the government is taking the land in good faith for a genuine public purpose. It also recommended that all notices of compulsory acquisition be tabled in Parliament so that Parliament can examine them and cancel them if it sees fit.[29]

C. Judicial Response to Legislative Attempts to Oust Court Jurisdiction

Generally, failure by the land owners to act within the period specified in the notice will result in the land being acquired by a notice of acquisition published in the National Gazette. Thereupon, the land is vested in the State, freed and discharged from all encumbrances, whether legal or equitable.[30] Also, once the acquisition notice is issued, the interest of every person in the land is converted into a right to claim compensation against the government.[31]

Some acquisition statutes attempt to oust jurisdiction of the court by including provisions which seek to prevent aggrieved parties from appealing against, or applying for, judicial review of an act or omission committed by an administrative body. An example of such provisions is s 40 of the Lands Acquisition Act (Ch 192), which provides that the notice of acquisition is conclusive evidence of the matter specified therein and is not to be challenged in any court of law. Similarly, s 10 of the National Land Registration Act (Ch 357) provides that the notice of declaration published in the National Gazette is not subject to appeal or review, and shall not be called into question in any legal proceedings. These provisions not only seek to prevent any dispute as to the validity of the notice, but also attempt to oust the jurisdiction of the court from inquiring into the validity of the notice of acquisition or declaration of the matter specified therein. It must be pointed out that the ouster clauses in the Lands Acquisition Act and the National Land Registration Act are examples of a general attempt by the legislature to exclude the courts from reviewing the exercise of administrative powers by tribunals. The judicial response to this is to develop counter measures which enable the courts nevertheless to supervise and control the exercise of administrative powers, without substituting the judge’s decision for that of the administrative bodies or tribunals. These counter measures adopted by the judiciary, in response to attempts by the legislature to oust jurisdiction of the courts from reviewing decisions or actions of inferior administrative bodies or tribunals, are derived from three main sources of law, namely the Constitution, statute and common law.

1. The Constitution

The Constitution is the supreme law of Papua New Guinea.[32] By s 10, all written laws (other than the Constitution itself) must be read and construed subject to the Constitution. Section 40 of the Lands Acquisition Act (Ch 192) and the National Land Registration Act (Ch 357) are examples of such written laws and, as such, these respective provisions must be read subject to the Constitution. Under s 37(11) of the Constitution,

“a determination of the existence or extent of a civil right or obligation shall not be made except by an independent and impartial court or other authority prescribed by law or agreed upon by the parties ...”.

It appears that unless there is an agreement between the parties as to the determination of the existence or extent of their civil rights or obligations, or unless a court of law determines the existence or extent of any such rights or duties, no acquisition notice can effectively prevent an affected party from challenging the validity of the acquisition in court. Also, under s 155(3)(a) of the Constitution, “the National Court has an inherent power to review any exercise of judicial authority”. By virtue of s 155(4), both the Supreme and National Courts:

“have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case”.

Furthermore, by s 57 of the Constitution, any person may go to the courts, including the National Court, to have a claimed right enforced so long as he or she is a person who has an interest in the matter, whether personal or not. Hence, if any land owner feels that his or her rights or interests have been adversely affected by the acquisition of his land, that person has standing under s 57 to invoke the jurisdiction of the National Court under s 155(3)(a) of the Constitution to review the decision or action of the tribunal.

As noted above, the provisions of the Lands Acquisition Act and the National Land Registration Act are subject to ss 37, 57, and 155 of the Constitution. If there is anything in acquisition statutes to suggest that the court, particularly the National Court, is excluded by the above provisions “then by the operation of the Constitution that much would be rendered unconstitutional and of no effect”.[33] This is because any statutory provision which is inconsistent with the constitutional provision is invalid and ineffective to the extent of the inconsistency.[34] Thus, as stated, an individual who alleges that his or her private right has been adversely affected by reason of the publication of the notice of acquisition or matter stated therein, can apply to the court under s 57 of the Constitution to have the right enforced. It is the duty of the National Court under its inherent power in s 155(3) to inquire into the validity of the notice or the matters specified therein in order to determine whether the individual’s right has in fact been violated as alleged.

In Reva Mase v The State (1980) N 260, the effect of s 9 of the National Land Registration Act 1977, which sought to oust the jurisdiction of the courts, was considered. In that case, the land in dispute was declared as State land under s 8 of the Act,[35]and gazetted on 17 May 1979. The land was subsequently occupied by the government. Section 9 of the Act seeks to prevent any appeal or review of the Minister’s declaration. The plaintiff claimed that his clan were the owners of the land by custom. He sought possession and demanded that the defendant vacate the land as it was an unlawful occupant. It was argued on behalf of the State that the Minister’s gazettal of the subject land was conclusive by operation of s 8 of the National Land Registration Act 1977, and that the land was State land. Consequently, s 9 of the Act ousted the jurisdiction of the National Court. Narokobi AJ rejected the argument, holding that whatever restrictions an Act of Parliament might seek to place on the jurisdiction of the National Court, the court has an inherent power of review where, in its opinion, there are overriding considerations of public policy in the special circumstances of a particular case. In other words, the Act cannot cut out the jurisdiction of the National Court to review any exercise of judicial authority by any inferior court or tribunal.[36]

It may be argued that the power of the National Court under s155(3)(a) of the Constitution comes into play only if the declaration of the Minister published in the Gazette is regarded as a judicial function. In other words, the publication of the notice of declaration in the Gazette is an administrative act (not judicial act) and, as such, the National Court’s power under s 155(3)(a) does not apply. But as Narokobi A J noted in Reva Mase (1980) N 260, whether the Minister’s act can be regarded as a judicial function or not is merely a question of characterisation of functions or acts of the Minister. “What is material is whether a person, following the gazettal, who has an interest in the matter genuinely believes he is adversely affected”.[37]

Where a statutory provision seeks to prevent any appeal from an act or omission, the courts in Papua New Guinea would normally hold that it bars an appeal, but not an application for a review. A case in point is State v District Land Court, Ex Parte Caspar Nuli [1981] PNGLR 192, which dealt with the effect of s 61 of the Land Disputes Settlement Act 1975. The section provided that the effect of a decision of a District Land Court “is final and not subject to appeal in any way”. The State in that case applied for a writ of certiorari to quash the decision of the District Land Court on the ground that there was an error of law on the face of the record. It was maintained by the respondent that s 61 of the Land Disputes Settlement Act barred any appeal to the National Court, and thus ousted the jurisdiction of the court to review the decision of the District Land Court and grant the relief under ss 155(3) and (4) of the Constitution. However, Bredmeyer J held that while s 61 prevents an appeal to the National Court, it is not effective to prevent an application for judicial review by means of a prerogative writ. Accordingly, s 61 could not oust the jurisdiction of the National Court.[38]

The approach taken in Caspar Nuli [1981] PNGLR 192 illustrates the point that although s 40 of the Lands Acquisition Act (Ch 192), s 61 of the Land Disputes Settlement Act (Ch 45), or s 10 of the National Land Registration Act (Ch 357) may prevent an affected person from appealing to the National Court to challenge the validity of the acquisition, it will not effectively prevent an application to the court for a review pursuant to s 155(3) of the Constitution. The decision in Caspar Nuli was approved in Siaman Riri v Nusai (1995) N 1375. In that case, the applicant made application to the National Court for judicial review without exhausting procedures under the Land Disputes Settlement Act (Ch 45). The main issue was whether the court has jurisdiction to entertain the application, given the fact that procedures under the relevant Act were not complied with by the applicants. It was argued on behalf of the respondents that s 60 of the Land Disputes Settlement Act (Ch 45) ousted the jurisdiction of the National Court to entertain the application. Whilst accepting that the procedures under the Land Disputes Settlement Act were not exhausted, the Court declared that s 60 is in conflict with s 155(3)(a) of the Constitution, and therefore invalid and ineffective. In so finding, the court endorsed the decision of Bredmeyer J in Caspar Nuli [1981] PNGLR 192 that the relevant provision of the Act precludes appeal from a decision of the Provincial Land Court, but has no effect on the review powers of the National Court in applications for orders in the nature of prerogative writs. An application for certiorari in judicial review matters is an example of such prerogative writs. It seems clear, therefore, that as Narokobi AJ noted in Reva Mase (1980) N 260, “as a matter of constitutional law, there is really no way the State can avoid the jurisdiction of the National Court”.[39] Once the Minister’s declaration or notice is published in the Gazette, a party or an aggrieved person may either go to the Land Titles Commission or to the courts, depending on whether the claim is related to customary or non-customary land respectively.[40]

Moreover, the courts in Papua New Guinea may grant an application for a review under s 155 of the Constitution even if such application was made outside the statutory time limit, if they are of the opinion that to do otherwise would cause injustice under the circumstances of the particular case. Such was demonstrated in the case of Dent v Minister for Lands [1981] PNGLR 488. Although the facts of the case are not relevant for the purposes of this discussion, the decision in that case throws a further light on the point that statutory time limits on appeal will not necessarily oust the constitutional power of the National Court under s 155 to grant an application for a review or an order. In that case, the applicant’s residential lease was forfeited to the State under s 54 of the Land Act 1962[41] for alleged non-development of the lease within the given period. The plaintiff’s case for not developing the land within the period covenanted was that the land was steeply sloping and that he had to spend quite a substantial amount of money carrying out levelling and drainage works prior to the actual development of the leased land. Before he completed the works, the lease was forfeited. After the time allowed for both appeal under s 121(2) of the Land Act 1962[42] and a six months time limit imposed by Order 81 Rule 7 of the Rules of the Supreme Court for an application for certiorari had expired, the applicant obtained a writ of summons seeking a declaration that the forfeiture was void and of no effect. The State as defendant demurred to the plaintiff’s application seeking declaratory relief, on the ground that his only real remedy was by way of appeal (the time for which had expired) under s 121(2) of the Land Act 1962.

Bredmeyer J held that in seeking a declaratory order, the plaintiff was seeking to invoke s 155(4) of the Constitution, which is the supreme law of Papua New Guinea and superior to any statute. The National Court thus had constitutional power under s 155(4) to grant a declaratory order involving the determination of questions arising under the Land Act, in disregard of the time limit on appeal imposed by s 121(2) of the Act.[43] The plaintiff was, therefore, not barred by s 121(2) from seeking a declaratory order; whether or not he should succeed in getting a declaration is then a matter within the discretion of the court. The court, in this case, took the view that the applicant (plaintiff) had good cause for not being able to develop the leasehold land within the stipulated period, and that to do justice under the circumstances the application had to be granted, even though it was made outside the statutory time limit for an appeal or a review. Thus, if a person whose interest has been adversely affected by some act or omission on the part of the government feels that he or she has a good ground for not being able to act within the statutory time limits, application may be made to the National Court under s 155 of the Constitution for a review. If the court is satisfied that the person concerned has a genuine case, it may invoke the power under s 155 in order to do justice under the circumstances. It is not then crucial whether or not the application for such a review is made within the time limit.

2. The Statutes

Applications for judicial review are regulated by Order 16 of the National Court Rules (hereafter “Order 16”) which provides for rules relating to certiorari. Those intending to apply for judicial review of administrative decisions should do so pursuant to Order 16. There are two matters on which the applicant has to address the court when seeking certiorari. One is the time limits stated in the rules within which the applicant must apply for certiorari, and the other is the substantive ground for the application. The relevant period in applications for certiorari is four months. Order 16 Rule 4(1) provides that leave may be refused for undue delay. Thus, in Jovanes Arazi v Department of Transport and Civil Aviation [1981] PNGLR 436, it was held that delay on the part of the applicant in coming to court for relief by way of prerogative writ is an important factor to be taken into account. However, the court has an unfettered discretion to extend statutory time limits if the delay is due to circumstances outside the control of the applicant.[44] This discretion must be exercised judicially in order to avoid injustice. The background to the litigation and prejudice to the other parties are relevant considerations in relation to the exercise of the discretion.[45] In addition, although the present four months time limit under Order 16 is the relevant period in considering whether there has been undue delay, it is not a mandatory period and therefore does not fetter the discretion of the court.

The Constitution, by s 41, gives a right of action to challenge acts done under a valid law which are harsh or oppressive. In such cases, the courts apply an objective test to ascertain whether the plaintiff or applicant has sufficient interest in the matter and whether the issues raised are substantial. In Valentine v Somare [1988-89] PNGLR 51, the plaintiff, an Australian citizen who had resided in Papua New Guinea for 14 years, was a director and share holder of a company. In January 1989, he was served with Notices of Cancellation of Entry Permit and Removal Order by the Minister for Foreign Affairs pursuant to the provisions of the Migration Act (Ch 16). The plaintiff, however, was not informed of the reasons for his deportation or cancellation of his entry permit, nor was he informed of the charge he had to answer. The plaintiff argued that he had sufficient interest in the matter at issue to seek judicial review of the decision by the Committee of Review as he, among other things, held a valid work permit, was a long term resident, and had substantial business interests in the country. The plaintiff applied for both an order for judicial review of the decision by the Committee of Review appointed pursuant to s 6 of the Migration Act (Ch 16), and an injunction to restrain the State as defendant from deporting him from Papua New Guinea until the final determination of the application for judicial review of the said committee’s decision. Under the circumstances, the court granted the plaintiff leave to apply for judicial review, holding that the plaintiff had sufficient interest in the matter and that the issues raised were substantial.[46] In such circumstances, the courts can go behind the act or omission of the administrative tribunal complained of, to see whether power has been exercised properly.[47]

It must be noted that certiorari can be granted where injustice has been done and there is no other remedy available to the affected person.[48] However, it must also be noted that, although the court has power to award certiorari against an administrative body or tribunal in certain circumstances, some grounds must be shown before the court can interfere with the decision. Thus, in Ex parte Gurupa (1990) N 956 the applicant applied for leave for judicial review of a decision of the Secretary of the Department of Works dismissing him from the Public Service. Indeed it was an action brought under s 155(4) of the Constitution for certiorari to quash the decision of the Secretary for Works. The court, holding that the right to seek judicial review may be available where an injustice has been done and there is no other remedy, presented the following (not exhaustive) list of grounds which need to be established before certiorari can be granted:

(a) Lack of jurisdiction (eg if the tribunal was improperly constituted or failed to follow its own rules for decision).

(b) Where the tribunal was in breach of the rules of natural justice (eg in failing to inform a person of the relevant charge, or failing to allow a person to speak on his or her own behalf).

(c) An error of law in considering or reaching the decision (a somewhat restricted ground).

(d) Where the decision of the tribunal was procured by fraud or collusion, such as perjured evidence (where the facts clearly point to such fraud, and the fraud has influenced the tribunal’s decision).

(e) Where the tribunal made its decision on the basis of an irrelevant consideration.[49]

In the instant case, the court refused to grant leave as sought by the applicant because, among other things, the applicant had failed to establish any of the above grounds, and in any event the applicant had another remedy available to him (ie the right to sue for damages for wrongful dismissal).
In some circumstances, however, the court may refuse an application for judicial review made outside the statutory time limit if there has been undue delay on the part of the applicant. Thus in NTN Pty Ltd v The Board of the Post & Telecommunication Corporation [1987] PNGLR 70, the applicant company applied for leave to proceed by way of judicial review outside the four months statutory time limit under Order 16 Rule 4(2). The application concerned a licence to broadcast television which was issued by the Board of the Post & Telecommunication Corporation on 19 November 1985 to Media Niugini Pty Ltd, one of the defendants in these proceedings (hereafter “respondents”). The respondents opposed the application, arguing that there was an undue delay in applying for the relief in this case and that the court should invoke its power under Order 16 Rule 4. This provision deals with the situation where the court’s discretion is being exercised where there has been delay. Order 16 Rule 4 is in the following terms:

“(1) Subject to the provisions of this Rule, where in any case the Court considers that there has been undue delay in making an application for judicial review or, in a case to which sub-rule (2) applies, the application for leave under Rule 3 is made after the relevant period has expired, the Court may refuse to grant -

(a) leave for the making of the application; or

(b) any relief sought on the application,

if, in the opinion of the Court, the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

(2) In the case of an application for an order of certiorari to remove any judgment, order, conviction or other proceeding for the purpose of quashing it, the relevant period for the purpose of sub-rule (1) is four months after the date of the proceeding.

(3) Sub-rule (1) is without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be made.”

As noted, the respondents’ grounds for objecting to the application for judicial review were, among other things, that there was an undue delay on the part of the applicant contrary to Order 16 Rule 4(2). Had the applicant acted within the time limit set by statute, there would have been an alternative remedy available. In addition, the respondents contended that they had already made significant capital expenditure in preparation for television broadcasting in the country which included, among other things, employment and training of staff, setting up premises, obtaining further licences, applying for special leases and constructing a broadcasting tower, having a co-siting arrangement with the applicants and making capital purchases to equip its production facilities. In the circumstances, the court held, in refusing the application, that there had been undue delay in that it was made 11 months too late. Further, invalidation of the licences granted to the respondents would have a substantial impact on their commercial viability, given the steps they had already taken since November 1985 to prepare for the introduction of a broadcasting service. The granting of the relief sought would, therefore, have caused substantial hardship to the respondents, and be detrimental to good administration.

3. The Common Law

Although the Papua New Guinea courts have used the terms “appeal” and “review” in the cases discussed earlier in this work, they have not clearly defined the distinction between the terms.[50] Given the lack of clear judicial guidance on the distinction in this jurisdiction between an “appeal” and a “review”, it is necessary to examine the position at common law. The common law distinction is laid down in the case of Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147[51] and, it is suggested, is the preferred approach to be adopted by the courts in Papua New Guinea. In order to fully understand the significance of the decision, it is important to set out the facts of the case in some detail. In that case, the plaintiff, Anisminic Ltd, was an English company incorporated in 1913. Between 1913 and 1958, the registered name was The Sinai Mining Co Ltd. Until 31 October 1956, the company was involved in mining manganese in Egypt. The value of the company property and assets in Egypt at that time was estimated to be worth about 4.5 million pounds sterling. The Suez Canal incident began on 31 October 1956. On 1 November 1956, the Egyptian Government issued a proclamation appointing sequestrators to take over and manage the assets of British and French nationals. Soon thereafter, the Israeli armed forces destroyed, damaged or removed about 500,000 pounds sterling worth of the company property. After the withdrawal of the Israeli armed forces in April 1957, the Egyptian Government issued a decree granting the Custodian General the authority to sell the property of British, French and Australian nationals which was the subject of sequestration. On 11 June 1957, the plaintiff registered, with the Foreign Office in London, a claim setting out details of the assets and goodwill of its undertakings in Egypt as at 31 October 1956. Subsequently, the plaintiff negotiated and obtained agreement with the Egyptian authorities to sell to the Economic Development Organisation (“TEDO”) the whole of its business in Egypt for 500,000 pounds sterling. The agreement specifically provided that the plaintiff’s assets should not include any claim which the company might have against any government authority other than the Egyptian Government.

In February 1959, the Governments of the United Kingdom and the United Arab Republic entered into an agreement in which the latter agreed to pay to the former the sum of 27.5 million pounds sterling in full and final settlement of the claims by United Kingdom nationals for certain property in Egypt. This sum of 27.5 million pounds and other moneys provided by the British Government formed the Egyptian Compensation Fund. Pursuant to the Foreign Compensation Act 1950 (UK), and certain Orders in Council (UK), the Foreign Compensation Commission was empowered to make provisional determinations as to whether applicants had made out their claims to be entitled to participate in the compensation fund.
In September 1959, the plaintiff made an application to the Commission, claiming that it was entitled to participate in the compensation fund. But in May 1963, the Commission provisionally determined that the plaintiff had failed to establish a claim fit for registration under the Foreign Compensation (Egypt) (Determination and Registration of Claims) Order 1962 (UK) in respect of its sequestrated property (with the exception of the property damaged by the Israeli armed forces). In June 1963, the Commission made a further determination in which it ordered that the plaintiff’s claim for damages be registered in the sum of 532,773 pounds. In the process of its adjudication, the Commission had determined that TEDO, who were not British nationals, had become the plaintiff’s successors in title.
The plaintiff, being aggrieved by the Commission’s finding, brought action in the High Court against the Commission for declarations to the effect that the Commission’s provisional determination was wrong and that Anisminic were entitled to participate in the compensation fund. The defendant Commission then contended, among other matters, that the High Court had no jurisdiction to entertain the proceedings.
On 29 July 1966, Brown J found for the plaintiff company and declared that the Commission’s provisional determination of 8 May 1963 was made without or in excess of jurisdiction and was a nullity. In addition, Brown J found that the Commission’s further provisional determination of 21 June 1963 was a nullity, and that the Commission was under a statutory duty to deal with the plaintiff’s claim in respect of its property in Egypt as established under the Foreign Compensation (Egypt) (Determination and Registration of Claims) Order 1962 (UK).
The defendant Commission, however, appealed to the Court of Appeal against the judgment of Brown J. According to the grounds of appeal, Brown J had been wrong in law in holding: (i) that he had jurisdiction to entertain the plaintiff’s claim in the action; (ii) that the Commission’s provisional determinations were a nullity; (iii) that the Commission had no jurisdiction to construe the provisions of the Foreign Compensation (Egypt) (Determination and Registration of Claims) Order 1962 (UK); and (iv) that TEDO had not become the successors in title to the plaintiff.
The Court of Appeal allowed the appeal (see [1967] 3 WLR 382), but the plaintiff company appealed further to the House of Lords. The House of Lords allowed the company’s appeal, reversing the decision of the Court of Appeal, and restored the decision of Brown J at first instance (see [1969] 2 AC 147).
The relevant ouster provision in the Foreign Compensation Act 1950 (UK) was s 4(4), to the effect that “The determination by the Commission of any application made to them under this Act shall not be called in question in any court of law”. Another pertinent piece of legislation was the Tribunals and Inquiries Act 1958 (UK), which established a Council on Tribunals and provided that where appeals are made to the courts from decisions of certain tribunals, reasons for such decisions must be provided. That Act also extended the supervisory powers of the High Court. Thus, s 11(1) stated:

“As respects England and Wales or Northern Ireland, any provision in an Act passed before the commencement of this Act that any order or determination shall not be called into question in any court, or any provision in such an Act which by similar words excludes any of the powers of the High Court, shall not have effect so as to prevent the removal of the proceedings into the High Court by order of certiorari or to prejudice the powers of the High Court to make orders of mandamus ...”

By s 11(3), however, it was expressly stipulated that sub-s (1) should not apply to any order or determination of the Foreign Compensation Commission. In view of these clear and emphatic statutory provisions, the main question to be decided was whether the court could nevertheless exercise jurisdiction and, if so, in what circumstances and to what extent.
Having outlined the factual background to the case, and the history of the litigation, the House of Lords then turned to the legal issues. In essence, the court had to decide whether the Commission’s purported determinations of the respondents’ claim pursuant to the Foreign Compensation Act 1950 (UK) and the Orders in Council could be called into question by the court in accordance with the provisions of s 11(1) of the Tribunal and Inquiries Act 1958 (UK), notwithstanding the express provisions of s 11(3) of that Act and of s 4(4) of the Foreign Compensation Act 1950 (UK). If so, could the courts substitute their own views on the construction of the Order in Council for that of the Commission? If not, were the provisions of s 11(3) and s 4(4) effective to oust the jurisdiction of the High Court to review or supervise decisions of inferior tribunals by way of certiorari or mandamus?
In the opinion of a majority of the House of Lords, the term “determination” in s 4(4) of the Foreign Compensation Act 1950 (UK) did not extend to include every purported determination. In the circumstances of the case, the Commission’s purported determination of the appellant’s application to participate in the compensation fund under the 1950 Act was found not to be a determination as such, because the Commission had misconstrued the provisions of the Order in Council which defined their jurisdiction. Accordingly, s 4(4) of the 1950 Act and s 11(3) of the Tribunal and Inquiries Act 1958 did not effectively oust or preclude the court from deciding whether or not the order of the Commission was a nullity.
The basis for the court’s decision[52] was that the courts have general jurisdiction over the administration of justice. However, from time to time the legislature establishes special tribunals to deal with special matters and gives them jurisdiction to decide these matters without any appeal to the courts. In such cases, the courts cannot hear appeals from such tribunals or substitute their own views on any matters which have been specifically committed to the tribunals by the legislature. Nevertheless, these tribunals must confine themselves within the powers specifically vested in them and make their inquiry and decision according to the law of the land. The courts will intervene when it is manifest from the record that the tribunal, though keeping within its mandated area of jurisdiction, has come to an erroneous decision through an error of law. In such cases, the courts must intervene to correct the error. The courts, however, have always been careful to distinguish their intervention, whether on excess of jurisdiction or error of law, from the appellate function. Their jurisdiction over inferior tribunals is supervision, not review.[53] It must be noted that the power of the courts to intervene is simply an enforcement of the legislature’s mandate to the tribunals:

“If the tribunal is intended to inquire into and decide questions within a certain area, the courts’ supervisory duty is to see that it makes the authorised inquiry according to natural justice and arrives at a decision whether right or wrong. They will intervene if the tribunal asks itself the wrong questions (that is, questions other than those which Parliament directed it to ask itself). But if it directs itself to the right inquiry, asking the right questions, they will not intervene merely because it has or may have come to the wrong answer, provided that this is an answer that lies within its jursidiction.”[54]

In summary, the court can supervise and review decisions of the inferior tribunals through certiorari and mandamus where an inferior tribunal has committed an error of law in the course of its determination or purported determination of a subject matter. The error of law committed or alleged to have been committed by the tribunal must either be an “error going to the jurisdiction” or “error within jurisdiction”. In the case of an “error within jurisdiction”, the inferior tribunal’s decision or purported determination cannot be appealed against, but an application may be made to the court for a review and declaration as to whether the purported determination is in effect a determination as such. The court in this instance cannot substitute the tribunal’s decision with its own decision as the subject matter of the determination is within the jurisdiction of the tribunal. On the other hand, in the case of an “error going to the jurisdiction”, the purported determination of the inferior tribunal may either be appealed against or an application may be made to the court for a review. In the former case, the appellate court has power to review and quash the purported determination and substitute its own opinion for that of the inferior tribunal. In the latter case, the court can only review the inferior tribunal’s purported determination to ascertain whether the conditions limiting the jurisdiction of the inferior tribunal to make determinations have been complied with; the court cannot substitute its own decision for that of the tribunal.[55]

D. Conclusion

The time limits imposed by acquisition statutes to bar land owners who act or respond outside of such time limits from seeking a judicial remedy is one instance of an attempt by the legislature to oust the jurisdiction of the courts. It is argued that the prescribed period under these circumstances may in reality not be sufficient for two reasons, especially where customary land is involved. First, most of the customary land owners live in remote rural areas with poor road and communication systems. Many of them may not be aware of the requirement for them to act within the time limit, and this may cause injustice to the land owners. Secondly, the ownership of customary land often involves a lot of people, many of whom may be scattered all over the country. It may require more time than that prescribed to identify and bring the notice of acquisition to the attention of as many owners as possible. If the land owners fail to act within the stipulated period due to poor roads, lack of transportation or poor communication systems, they can apply to the National Court for an extension of the time limit. The National Court in such cases is generally able to exercise its discretionary power under the Constitution and grant the extension sought, even if an Act of Parliament seeks to oust the jurisdiction of the court.
Another attempt by the legislature to oust jurisdiction of the courts is by conferring power on inferior administrative bodies or tribunals to be exercised to the exclusion of the courts. In doing so, it may purport to prevent aggrieved parties from seeking judicial remedies by way of an appeal or an application to have a decision of the inferior tribunal reviewed. It is apparent from cases where statutes purport to oust the jurisdiction of the National Court by attempting to prevent any appeal or review that the court would invariably hold that although it may be prevented from entertaining an appeal, it cannot be prevented under any circumstances from entertaining an application for a review by means of prerogative writs. The National Court has an inherent constitutional power to review any exercise of judicial authority by any inferior administrative body or tribunal under s 155(3) of the Constitution. After the review, the court will make such orders or declarations in the nature of prerogative writs or such other orders as are necessary to do justice in the circumstances of each case under s 155(4). Even if s 155 of the Constitution did not exist, at common law prerogative writs lie even where a statute declares the decision of an inferior court or tribunal to be “final”.[56]

The legal analysis of the distinction between an appeal and a review in Anisminic is one of the most interesting and ingenious analyses in the common law world. Of course, the common law position with respect to ouster provisions in statutes and the judicial response to such provisions, as demonstrated in the Anisminic case, only has persuasive value for the courts in Papua New Guinea. Nevertheless, it has formed the basis of the approach adopted by courts in Papua New Guinea in similar cases,[57] and is an important source of law adopted under the Constitution.[58] It will help to guide the courts in Papua New Guinea to develop a coherent system of underlying law for Papua New Guinea.

* Lecturer in Law, Faculty of Law, University of Papua New Guinea. The author wishes to thank Associate Professor Owen Jessep and Dr John Luluaki for their comments on a draft of this paper.

[1] This Act was repealed by the Land Act 1996 (No 45 of 1996) which came into force in early 1997. It must be noted that, although the Act was repealed, references have been made to relevant provisions of the Act elsewhere in this work merely to illustrate how the legislature attempts to oust jurisdiction of the courts in Papua New Guinea. In the opinion of the author, the references so made will not, therefore, affect the substance of this work.

[2] “Customary land” is land which is owned or possessed by an automatic citizen or community of automatic citizens by virtue of rights of a proprietary or possessory kind which belong to that citizen or community and arise from and are regulated by custom. Customary land, which is also known as unalienated land, accounts for about 97 percent of the total land in Papua New Guinea. See G Muroa, “Recognition of Indigenous Land Rights: A Papua New Guinean Experience” (1994) 22 Melanesian Law Journal 81-101, at 84.

[3] In this case the applicants were dissatisfied with the decision of the District Land Court made under the Land Disputes Settlement Act 1975 (Ch 45). They could not lodge any appeal against the decision because they were prevented from doing so by s 61 of the Act. The applicants sought to apply for a writ of certiorari to quash the decision of the District Land Court under the Rules of the National Court which provide for such applications to be made within six months after the decision. But due to circumstances beyond their control they were twenty months too late. The applicants nevertheless applied to the National Court for an enlargement of the six months time limit in which to apply for a writ of certiorari. The application was granted.

[4] [1981] PNGLR 423, at 443.

[5] Mudge v Secretary for Lands [1985] PNGLR 387.

[6] [1981] PNGLR 488. This case is discussed in detail in Part C, below.

[7] See s 12 of the Land Act 1996 and s 7 of the Lands Acquisition Act.

[8] See Duncan v Minister of Education [1969] VR 362.

[9] Also see Duncan v Minister of Education [1969] VR 362, where there was six years delay in completing the acquisition.

[10] [1964] AC 1088, at 1127.

[11] Section 12 of the Land Act 1996; s 7 of the Lands Acquisition Act (Ch 192), s 9 of the Lands (Underdeveloped Freeholds) Act (Ch 193) provide for the Minister for Lands to exercise compulsory acquisition power on behalf of the government.

[12] S A de Smith, Constitutional and Administrative Law, 2nd ed (London, 1973), at p 531.

[13] Ibid.

[14] Repealed by the Land Act 1996. For comment, see above, n 1.

[15] The purposes of the Act are public purposes as defined in s 1 of the Act.

[16] Unreported judgment, 2 September 1980, WW No 830 of 1980.

[17] The provisions of s 19 of the Migration Act (Ch 16), are as follows:

(1) Without limiting the generality of Subsection (2), the expression ‘review’ or ‘challenge’ in that subsection includes:-

(a) a writ of certiorari, prohibition or mandamus or other form of prerogative writ, or other writ, orders or process in the nature of such a writ; or
(b) proceedings by way of appeal or for a writ order or process referred to in paragraph (a) (including proceedings for an order nisi or to show cause why relief should not be granted).

(2) An act, proposed act or decision of the Minister relating to the grant or cancellation of an entry permit or to the removal of a person from the country, or any decision of a Committee of Review under Section 6, is not open to review or challenge in any court on any ground.

[18] See n 17 above for an equivalent provision in the present Act (Ch 16).

[19] [1979] PNGLR 329, at 337.

[20] [1979] PNGLR 329, at 338. This Supreme Court decision was applied by Andrew AJ in Valentine v Somare [1988-89] PNGLR 51, at 53-54.

[21] See R v Inspector of Leman Street Police Station, Ex parte Venicoff [1920] 3 KB 72; R v Governor of Brixton, Ex parte Soblen [1963] 2 QB 243; and see also Re Marles’ Application [1958] EA 153.

[22] See Attorney-General for the Dominion of Canada v Cain [1906] AC 542.

[23] See R v MacKellar, Ex parte Gaunt (1978) 20 ALR 119; Salemi v Minister for Immigration and Ethnic Affairs (No 2) (1977) 137 CLR 396; and R v MacKellar, Ex parte Ratu (1977) 137 CLR 461.

[24] By Sch 2.1 and 2.2 of the Constitution, custom of Papua New Guinea and the principles and rules of common law and equity that were in force as at Independence on 16 September 1975 are adopted as part of the underlying law. Schedule 2.3 imposes a duty on the National and Supreme Courts in some circumstances to develop an appropriate rule as part of the underlying law for Papua New Guinea, having regard to the National Goals and Directive Principles and Basic Social Obligations, the Basic Rights, relevant statutes and customs of Papua New Guinea, legislation and decisions of courts of other countries having a similar legal system to Papua New Guinea, and the relevant decisions of the courts in Papua New Guinea.

[25] [1988-89] PNGLR 51, at 53. See also Premdas [1979] PNGLR 329 at 340, where the Supreme Court applied the principle expounded in the Kenyan case of Re Marles’ Application [1958] EA 153.

[26] See Premdas [1979] PNGLR 329, at 339-40.

[27] This passage ([1906] AC 532 at 546) is quoted in Premdas [1979] PNGLR 329 at 340.

[28] [1948] 1 KB 223 at 228, referred to at Premdas [1979] PNGLR 329 at 344.

[29] See Commission of Inquiry into Land Matters, Report (Port Moresby, 1973), Recommendation 53.

[30] See s 12(2) of the Land Act 1996; and s7(2) of the Lands Acquisition Act (Ch 192).

[31] See s 14 of the Land Act 1996; and s 12 of the Lands Acquisition Act (Ch 192).

[32] Section 11 of the Constitution declares that the Constitution and the Organic Laws are the Supreme Law of Papua New Guinea and all acts, whether legislative, executive or judicial, that are inconsistent with them are, to the extent of the inconsistency, invalid and ineffective.

[33] See Reva Mase v The State (1980) N 260, at 3.

[34] See Dent v Minister for Lands [1981] PNGLR 448, at 491; and Siaman Riri v Nusai (1995) N 1375, at 9. Note also s 11 of the Constitution.

[35] The current provisions, equivalent to ss 8 and 9 of the 1977 Act are, respectively, ss 9 and 10 of the National Land Registration Act (Ch 357).

[36] (1980) N 260, at 1-3.

[37] Id, at 6.

[38] Note that in Siaman Riri v Nusai (1995) N 1375, Sakora J, while agreeing with Bredmeyer J, held that s 60 of the present Land Disputes Settlement Act (Ch 45) (equivalent to the former s 61), is in conflict with s 153(3)(a) of the Constitution and therefore invalid.

[39] (1980) N 260, at 8.

[40] See ss 19 and 20 of the Land Act 1996; s 15 of the Lands Acquisition Act (Ch 192); and s 6 of the National Land Registration Act (Ch 357) for courts having jurisdiction in respect of such matters.

[41] The corresponding section in the current Land Act 1996 is s 122.

[42] The corresponding section in the current Land Act 1996 is s 142.

[43] [1981] PNGLR 488, at 491.

[44] Ex parte Gurupa (1990) N 856; State v Giddings [1981] PNGLR 84.

[45] State v Giddings [1981] PNGLR 84.

[46] Valentine v Somare [1988-89] PNGLR 51, at 55-56. For the later history of this case, see Valentine v Somare (No 2) [1988-89] PNGLR 241.

[47] See Ex Parte Gurupa (1990) N 956.

[48] Id, at 6.

[49] Id, at 7-8.

[50] See Avia Aihi v The State [1981] PNGLR 81, where the Supreme Court declared that there is no difference between the terms “appeal” and “review” as they appear in ss 37(15) and (16) of the Constitution. Section 37(15) and (16) provide:

“(15) Every person convicted of an offence is entitled to have his conviction and sentence reviewed by a higher court or tribunal according to law.

(16) No person shall be deprived by law of a right of appeal against his conviction or sentence by any court that existed at the time of the conviction or sentence, as the case may be.”

See also Simian Riri v Nusai (1995) N 1375, where Sakora J, when considering the effect of s 60 of the Land Disputes Settlement Act (Ch 45), which purports to oust the jurisdiction of the National Court by preventing an appeal from a decision of the Provincial Land Court, noted that there is no distinction between an appeal and a review in so far as criminal matters are concerned. In civil matters, in contrast, appeal and review are two different things, to the extent that s 60 precludes an appeal from a decision of the Provincial Land Court but has no effect on the review powers of the National Court under s 155 of the Constitution.

[51] The Court of Appeal decision, from which the appeal to the House of Lords was brought, is reported at [1967] 3 WLR 382.

[52] See especially the views of Lord Pearce, [1969] 2 AC 147 at 194-95.

[53] See Rex v Nat Bell Liquors Ltd [1922] AC 128 at 156, where it was stated: “That supervision goes to two points: one is the area of the inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of the law in the course of its exercise.” This passage was quoted by Lord Pearce in Anisminic [1969] 2 AC 147, at 195.

[54] [1969] 2 AC 147, Lord Pearce at 195.

[55] See the helpful analysis of the distinction between an appeal and a review in the judgment of Diplock LJ in the Court of Appeal decision in Anisminic: [1967] 3 WLR 382, at 396-98. It is submitted that this analysis is not affected by the House of Lords decision in the same case: [1969] 2 AC 147.

[56] Caspar Nuli [1981] PNGLR 182.

[57] See eg Steamships Trading Co Ltd v Joel [1991] PNGLR 133; and Dent v Minister for Lands [1981] PNGLR 488. In the former case, the decision in Anisminic was applied; in the latter case, Anisminic was mentioned in passing, but it was not necessary to decide its applicability.

[58] See Constitution, Sch 2.2.