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Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004

No. 3 of 2004.

Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004.

Certified on: 13/4/2004.

INDEPENDENT STATE OF PAPUA NEW GUINEA.

No. 3 of 2004.

Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004.

ARRANGEMENT OF SECTIONS.

1. Compliance with Constitutional Requirements.
2. Interpretation.
3. Declaration of Regulatory Statutory Authorities.
4. Vacancy in office for Chief Executive Officer.
5. Merit-based appointment process.
6. Procedure following merit-based appointment process.
7. Investigations of grounds for dismissal.
8. Suspension of a Chief Executive Officer.
9. Acting appointment of Chief Executive Officers.
10. Appointment of non ex officio members of boards of regulatory statutory authorities..
11. Regulations.
12. Act to prevail.
13. Department to exercise functions of board.
14. Consequential amendments to acts.
15. Transitional and savings.

INDEPENDENT STATE OF PAPUA NEW GUINEA.

AN ACT

entitled

Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004,

Being an Act to implement Part VIIA of the Constitution relating to –

(a) the declaration of Regulatory Statutory Authorities; and
(b) the appointment, suspension and revocation of appointment of chief executive officers of Regulatory Statutory Authorities; and
(c) the appointment of non ex officio members of Boards of Regulatory Statutory Authorities,

and for related purposes,
MADE by the National Parliament to come into operation in accordance with a notice in the National Gazette by the Head of State, acting with, and in accordance with, the advice of the Minister.

PART 1. – PRELIMINARY.

1. COMPLIANCE WITH CONSTITUTIONAL REQUIREMENTS.

(1) This Act, to the extent that it regulates or restricts the exercise of a right of freedom referred to in Subdivision III.3.C (qualified rights) of the Constitution, namely –

(a) the right to freedom of expression and publication conferred by Section 46 of the Constitution; and
(b) the right peacefully to assemble and associate and to form or belong to, or not to belong to, political parties, industrial organizations or other associations conferred by Section 47 of the Constitution; and
(c) the right to freedom of choice of employment in any calling for which a person has the qualifications (if any) lawfully required conferred by Section 48 of the Constitution; and
(d) the right to reasonable privacy conferred by Section 49 of the Constitution,

is a law that is made (pursuant to Section 38 of the Constitution), taking account of the National Goals and Directive Principles and the Basic Social Obligations, in particular the National Goals and Directive Principles entitled  –

(e) national sovereignty and self reliance; and
(f) natural resources and environment,

for the purpose of giving effect to the public interest in public order and public welfare.

(2) For the purposes of Section 41 of the Organic Law on Provincial Governments and Local-level Governments, it is declared that this Act relates to a matter of national interest.

2. INTERPRETATION.

In this Act, unless the contrary intention appears –

“Board”, in relation to a Regulatory Statutory Authority, means the Board of Directors or other controlling or governing body, by whatever name known, established to perform the functions, exercise the powers and manage and direct the affairs of that authority;
“chief executive officer”, in relation to a Regulatory Statutory Authority, means the person appointed as the chief executive officer or the head of the staff of that authority responsible for the management and the carrying out of the functions of that authority;
“merit-based appointment process” means the process of appointment specified in Section 5;
“Regulatory Statutory Authority” means –

(a) a body corporate established by an Act of Parliament to perform specific statutory functions; and
(b) a body corporate incorporated by authority of an Act of Parliament, and declared under Section 3 to be a body to which Part VIIA (Regulatory Statutory Authorities) of the Constitution and this Act applies;

“this Act” includes the regulations.

3. DECLARATION OF REGULATORY STATUTORY AUTHORITIES.

(1) The Minister may, by notice in the National Gazette, declare a Regulatory Statutory Authority to be a body to which Part VIIA (Regulatory Statutory Authorities) of the Constitution and this Act applies.

(2) On the publication of a notice under Subsection (1) –

(a) the Regulatory Statutory Authority is subject to the provisions of Part VIIA (Regulatory Statutory Authorities) of the Constitution and this Act; and
(b) the Act or other instrument of incorporation under which the Regulatory Statutory Authority is established is to be read subject to Part VIIA (Regulatory Statutory Authorities) of the Constitution and this Act; and
(c) notwithstanding any provision in the Act or other instrument of incorporation under which that Regulatory Statutory Authority is established, the manner of –

(i) appointment, suspension and dismissal of the chief executive officer; and
(ii) appointment of a non ex officio member of the Board,

of that Authority is as specified under Part VIIA (Regulatory Statutory Authorities) of the Constitution and this Act.

(3) For the purposes of this section –

(a) the bodies specified in Schedule 1 are Regulatory Statutory Authorities; and
(b) the Acts specified in Schedule 2 are subject to Part VIIA (Regulatory Statutory Authorities) of the Constitution and this Act; and
(c) the bodies or entities created by the Acts specified in Schedule 2 are Statutory Regulatory Authorities.

PART 2. – PROCEDURES FOR SELECTION AND APPOINTMENT OF CHIEF EXECUTIVE OFFICERS.

4. VACANCY IN OFFICE FOR CHIEF EXECUTIVE OFFICER.

(1) Where the office of the chief executive officer of a Regulatory Statutory Authority is vacant, or is likely to become vacant, the Board shall –

(a) by notice in the National Gazette and in at least one newspaper circulating generally in Papua New Guinea, declare the office vacant; and
(b) advertise the vacancy and invite applications for appointment to the office.

(2) The Board shall, following the merit-based appointment process specified in Section 5 –

(a) prepare from the applications received a ranked list of five candidates in the order of preference; and
(b) submit the list to the Public Services Commission for its consideration.

(3) Where, in relation to an advertised vacancy, the applications received are less than five, the Board shall prepare a ranked list of the applications to the Public Services Commission who shall consider whether the position is to be re-advertised or whether it shall proceed to consider the applications.

5. MERIT-BASED APPOINTMENT PROCESS.

Regulations may prescribe a merit-based appointment process which shall involve the following: –

(a) the advertisement of a vacancy in an office in the prescribed format together with minimum person specification for applicants to the position;
(b) the assessment of each applicant’s curriculum vitae, submitted in a prescribed format, and their competency to perform the prescribed duties as measured against the minimum person specification for the position;
(c) a ranked ordered assessment of all applicants for the advertised position in terms of their relative competency to perform the prescribed duties;
(d) the merit based assessment described in this section shall be the primary consideration of the Public Services Commission in making a recommendation to the Board; and
(e) all other considerations not related to the processes described in this section shall have no bearing in the recommendation of the Public Services Commission and of the Board.

6. PROCEDURE FOLLOWING MERIT-BASED APPOINTMENT PROCESS.

(1) On the receipt of a list under Section 4(2), the Public Services Commission shall prepare a list, using the merit-based process, of not less than three suitable candidates in the order of preference, either from the list submitted by the Board or from the original applicants to the position, and shall submit its recommendations to the Board.

(2) On the receipt of the recommendations under Subsection (1), the Board shall either –

(a) forward the list to the relevant Minister who shall submit his recommendation to the National Executive Council for its consideration within one month of the receipt of the list from the Board; or
(b) determine that the position be re-advertised and shall advise the Public Services Commission accordingly.

(3) The National Executive Council may, in considering the submission from the Minister under Subsection (2)(a) –

(a) select one of the candidates recommended by the Minister and shall advise the Head of State to make the appointment of the selected candidate to the position; or
(b) reject any recommendation for appointment in which case, the Board shall re-advertise the position.

PART 3. – PROCEDURE FOR REVOCATION OF APPOINTMENT, ETC., OF CHIEF EXECUTIVE OFFICERS.

7. INVESTIGATIONS OF GROUNDS FOR DISMISSAL.

(1) Where, in relation to a Regulatory Statutory Authority, the Board believes that grounds exist for the dismissal of the chief executive officer, it shall cause an investigation into the conduct, activities or performance of the chief executive officer.

(2) The grounds for dismissal referred to in Subsection (1) shall be consistent with the grounds for dismissal as specified in the chief executive officer’s contract of employment which include breach of contract, misconduct, poor performance, incompetence and ill health, as prescribed in the Regulations.

(3) Where the Board has made an investigation under Subsection (1), it shall submit a report on its investigation together with its recommendations to the Public Services Commission.

(4) On the receipt of a report under Subsection (3), the Public Services Commission –

(a) shall consider the evidence provided and the recommendations of the Board; and
(b) may make, or cause to be made, and consider such further investigations (if any) as it considers necessary; and
(c) shall, on the basis of the report and the results of further investigations (if any), inform the Board by way of a recommendation whether or not the appointment of the chief executive officer should be revoked.

(5) The Board shall convey its recommendation to the Minister and, in the event that the National Executive Council approves the recommendation of the Minister to revoke the appointment of the chief executive officer, the National Executive Council shall advise the Head of State to revoke the appointment of the chief executive officer.

8. SUSPENSION OF A CHIEF EXECUTIVE OFFICER.

(1) Where a Board is to carry out an investigation into the conduct, activities or performance of a chief executive officer under Section 7(1) and is in receipt of material information from credible sources that the conduct of the chief executive officer is such that serious charges of misconduct may be brought against the chief executive officer, it shall determine whether grounds exist for the suspension of the chief executive officer during the period of the investigation.

(2) The grounds for the suspension of the chief executive officer shall be consistent with the grounds for dismissal or suspension as prescribed and contained in the chief executive officer’s contract of employment.

(3) Where the Board determines that grounds exist for the suspension of the chief executive officer, it shall advise the relevant Minister to recommend to the National Executive Council the suspension of the chief executive officer on full pay for the duration of the investigation.

(4) In the event that the National Executive Council approves the recommendation of the Minister for the suspension of the chief executive officer, it shall advise the Head of State to suspend the chief executive officer.

9. ACTING APPOINTMENT OF CHIEF EXECUTIVE OFFICERS.

(1) Where, in relation to a Regulatory Statutory Authority –

(a) the chief executive is unable to undertake his duties for any reason; or
(b) the Board considers it necessary to make an acting appointment pending a new substantive appointment,

the Board shall recommend to the Minister a suitable person to act for a period not exceeding three months, from a pre-selected list of suitable persons endorsed by the Public Services Commission based upon an assessment of the prescribed minimum person specification.

(2) On receipt of a recommendation under Subsection (1), the Minister shall recommend to the National Executive Council to make an acting appointment, and the National Executive Council shall make the acting appointment

PART 4. – PROCEDURE FOR APPOINTMENT OF NON EX OFFICIO MEMBERS OF BOARDS.

10. APPOINTMENT OF NON EX OFFICIO MEMBERS OF BOARDS OF REGULATORY STATUTORY AUTHORITIES..

(1) Where, in relation to a Regulatory Statutory Authority, an appointment of a member of the Board, other than an ex officio member, is required to be made in accordance with the Act or other instrument of incorporation under which the Regulatory Statutory Authority is established, the appointment shall be made, notwithstanding any provisions to the contrary, by the Head of State, acting on advice.

(2) Where an appointment to which Subsection (1) applies is to be made, the Minister shall –

(a) prepare a list of candidates for the office; and submit the list to the Public Services Commission for its consideration.
(b) submit the list to the Public Services Commission for its consideration.

(3) Where, under an Act or other instrument of incorporation, an appointment to an office to which Subsection (1) applies is to be made to represent a particular group, the Minister shall, prior to submitting a list to the Public Services Commission under Subsection (2)(b) –

(a) carry out genuine consultations with the particular group concerned on its proposed nominees for the office; and
(b) from the consultations made, compile a summary of the nominees made by the interest group,

for submission to the Public Services Commission for its consideration.

(4) On the receipt of a list under Subsection (2)(b), the Public Services Commission shall consider whether each applicant satisfies a “fit and proper person criteria” based on the following: –

(a) whether the person is a fit and proper person to hold the particular office; and
(b) whether the person is competent and of sound judgement to fulfil the responsibilities of that office; and
(c) whether he is a person whose previous conduct and activities in business or financial matters is not in question and, in particular, that he may not have –

(i) committed an offence involving fraud or other dishonesty or violence; or
(ii) been engaged in or been associated with any financial loss due to dishonesty, incompetence or malpractice; or
(iii) been engaged in any business practices appearing to be deceitful or oppressive or otherwise improper (whether unlawful or not) or which otherwise reflect discredit on his conduct; or
(iv) engaged in or been associated with any other business practices or otherwise conducted himself in such a way as to cast doubt on his competence and soundness of judgement,

and shall make appropriate recommendations and advice on appointment to the Minister.

(5) On the receipt of the advice of the Public Services Commission under Subsection (5), the Minister shall make a submission on appointment to the National Executive Council for its consideration.

(6) In the event that the National Executive Council approves the recommendation of the Minister under Subsection (6), it shall advise the Head of State to make an appointment of a non ex officio member of the Board of the Statutory Regulatory Authority.

PART 5. – MISCELLANEOUS.

11. REGULATIONS.

The Head of State, acting on advice, may make regulations not inconsistent with this Act prescribing all matters that by this Act are required or permitted to be prescribed or that are necessary or convenient to be prescribed for carrying out or giving effect to this Act, including, but not limited to –

(a) the minimum person specification for appointment as measured against the requirements for acceptable performance, utilizing the criteria established under the Public Services (Management) Act 1995 and the Regulations made there under; and
(b) the process to be followed further in the appointments or revocation of chief executive officers; and
(c) the minimum procedural requirements to be included in an employment contract for the purpose of satisfying the regulations; and
(d) the process to be followed further in the investigation of allegations and the revocation of appointments of chief executive offices; and
(e) penalties not exceeding K10, 000.00 for offences against the regulations.

12. ACT TO PREVAIL.

Where, in the application of this Act, there is an inconsistency between a provision of this Act and a provision of another Act in relation to –

(a) the appointment, suspension or revocation of appointment of the chief executive officer; or
(b) the appointment of a non ex officio member of the Board,

of a Regulatory Statutory Authority, this Act prevails to the extent of any inconsistency.

13. DEPARTMENT TO EXERCISE FUNCTIONS OF BOARD.

Where, in relation to a Regulatory Statutory Authority, there is no Board or other controlling or governing body, the functions of a Board specified under Parts 2, 3 and 4 of this Act shall be exercised by the Department responsible for personnel management matters

14. CONSEQUENTIAL AMENDMENTS TO ACTS.

The Acts specified in Column 1 of Schedule 2 are amended to the extent specified in Columns 2 and 3 of that Schedule.

15. TRANSITIONAL AND SAVINGS.

(1) A chief executive officer or a non ex officio member of the Board of a Regulatory Statutory Authority to which this Act applies who –

(a) was, before the coming into operation of this Act, validly appointed (whether substantively or temporarily); and
(b) immediately before that coming into operation held that office (whether substantively or otherwise),

shall, on that coming into operation, be deemed to be validly appointed (substantively or temporarily, as the case may be) under this Act, and shall continue to hold that office (substantively or temporarily, as the case may be) until the expiry of the term of his appointment or until the cessation of his appointment otherwise according to law, whichever shall first happen.

(2) A chief executive officer or non ex officio member of the Board of a Regulatory Statutory Authority to which this Act applies who –

(a) was, before the coming into operation of this Act, validly suspended from office; and
(b) immediately before that coming into operation was so suspended from office,

shall, on that coming into operation, be deemed to be validly suspended from that office in accordance with this Act, and shall continue to be so suspended from office until the suspension is lifted or until he ceases to hold that office according to law, whichever shall first happen.

SCHEDULE 1 – .

Section 3(3)(a)

Regulatory Statutory Authorities.

SCHEDULE 2 – .

Regulatory Statutory Authorities.