19 distinct human rights identified under PNG Constitution

Comparative constitutional law offers many opportunities to learn new insights and opportunities for future reforms, including for Australian lawyers dulled by a constitutional regime largely devoid of identified human rights.

In stark contrast to Australia’s anemic constitutional regime, the Papua New Guinea (PNG) National Court of Justice recently identified 19 distinct human rights under the PNG Constitution.

The case, Helal Uddin v Solomon Kantha [2020] PGNC 83; N8267 (Cannings J), involved a Bangladeshi man who was transferred from Australia to PNG in 2013 and held at the Manus Island Regional Processing Centre. He had married a PNG citizen and had a child who was a PNG citizen, yet the PNG government proposed to deport him. He applied to the PNG National Court of Justice to stop his removal from PNG.

As the man was not a PNG citizen, Cannings J listed in the following table (and [49] of the judgement) each of the 19 distinct and individual rights in the PNG Constitution and categorised them according to who are the ‘beneficiaries’ or ‘possessors’ of each right: either all persons in PNG or PNG citizens only.

HUMAN RIGHTS IN PAPUA NEW GUINEA
CATEGORISED ACCORDING TO BENEFICIARIES/POSSESSORS

No
Description
Constitution provision
Details
Beneficiaries/
Possessors

1.

Right to freedom
s 32
Every person has the right to freedom based on law and can do anything that does not interfere with others and is not prohibited by law.
All persons in PNG

2.

Right to life
s 35
No person shall be intentionally deprived of his or her life except by a court sentence or by reasonable force as permitted by law.
All persons in PNG

3.

Freedom from inhuman treatment
s 36
No person shall be submitted to torture or cruel or inhuman treatment.
All persons in PNG

4.

Protection of the law
s 37
Every person has the right to the full protection of the law, especially persons charged with offences.
All persons in PNG

5.

Protection from unlawful acts
s 41
Any act that is done under a valid law but in the particular case is harsh or oppressive or otherwise proscribed by s 41(1) is an unlawful act.
All persons in PNG

6.

Right to personal liberty
s 42
No person shall be deprived of his or her personal liberty except in circumstances permitted by the Constitution. No person can be unlawfully arrested or detained.
All persons in PNG

7.

Freedom from forced labour
ss 43,
253
No person shall be required to perform forced labour except in circumstances permitted by the Constitution. Slavey is strictly prohibited.
All persons in PNG

8.

Freedom from arbitrary search and entry
s 44
No person shall be subjected to the unreasonable search of his or her person or property or to unreasonable entry of their premises except in circumstances permitted by the Constitution.
All persons in PNG

9.

Freedom of conscience, thought and religion
s 45
Every person has the right to freedom of conscience, thought and religion and to practise and propagate their religion and beliefs, subject to the regulation or restriction of these rights in accordance with the Constitution.
All persons in PNG

10.

Freedom of expression
s 46
Every person has freedom to hold opinions, to receive ideas and information and to communicate ideas and information and to express and publish their opinions and ideas, subject to the regulation or restriction of these rights in accordance with the Constitution.
All persons in PNG

11.

Freedom of assembly and association
s 47
Every person has the right to peacefully assemble and associate and to form or belong to, or not to belong to, political parties, industrial organizations or other associations, subject to the regulation or restriction of these rights in accordance with the Constitution.
All persons in PNG

12.

Freedom of employment
s 48
Every person has the right to freedom of choice of employment in any calling for which he or she has the qualifications lawfully required, subject to the regulation or restriction of these rights in accordance with the Constitution.
All persons in PNG

13.

Right to privacy
s 49
Every person has the right to reasonable privacy in respect of the private and family life, their communications with other persons and their personal papers and effects, subject to the regulation or restriction of these rights in accordance with the Constitution.
All persons in PNG

14.

Right to vote and stand for public office
s 50
Every citizen who is of full capacity and has reached voting age has the right and shall be given a reasonable opportunity to take part in the conduct of public affairs, either directly or through freely chosen representatives and to vote for, and to be elected to, elective public office at genuine, periodic, free elections and to hold public office and to exercise public functions.
PNG citizens only

15.

Freedom of information
s 51
Every citizen has the same rights, privileges, obligations, and duties, irrespective of race, tribe, place of origin, political opinion, colour, creed, religion or sex.
PNG citizens only

16.

Freedom of movement
s 52
No citizen may be deprived of the right to move freely throughout the country, to reside in any part of the country and to enter and leave the country; and citizens cannot be expelled or deported except in accordance with the Constitution.
PNG citizens only

17.

Protection from unjust deprivation of property
s 53
Possession may not be compulsorily taken of any property, and no interest in or right over property may be compulsorily acquired, except in accordance with an Organic Law or an Act of the Parliament that provides just compensation and meets other constitutional requirements.
PNG citizens only

18.

Right to equality
s 55
Every citizen has the same rights, privileges, obligations, and duties, irrespective of race, tribe, place of origin, political opinion, colour, creed, religion or sex.
PNG citizens only

19.

Right of enforcement
s 57
All rights and freedoms are enforceable in the Supreme Court and the National Court.
All persons in PNG

 

While many of these rights are familiar from the Universal Declaration of Human Rights and similar human rights conventions, several of PNG’s constitutionally protected human rights, such as s 41, are particularly broad.

Another remarkable feature of PNG’s system is the clear right in s 57 to enforce the rights protected under the constitution in the PNG National Court of Justice.

This is linked to a right in s 58 to seek damages for infringement of other rights (the right to seek damages under s 58 is, arguably, a 20th right that Cannings J should have included in the rights listed in the table).

While dismissing a number of the applicant’s claims of breaches of constitutional rights, Cannings J went on to discuss the “narrow” and “broad” approaches to s 41 (Proscribed acts) at [58]-[67]. His Honour noted, at [60], that:

“Even if done under a valid law and notwithstanding anything to the contrary in any law, an act is unlawful if it is, in the particular case:

  • • harsh; or
  • • oppressive; or
  • • not warranted by the requirements of the particular circumstances; or
  • • disproportionate to the requirements of the particular circumstances; or
  • • not warranted by the requirements of the particular case; or
  • • disproportionate to the requirements of the particular case; or
  • • otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.”

 

Cannings J affirmed his previous application of the broad approach to s 41, which he summarised at [68] as:

  • • human rights as conferred and defined by the Constitution have universal application, and cannot be said to have no operation in any situation;
  • • s 41 creates rights, freedoms and protections (and thereby imposes obligations) in the same way as other human rights provisions of Division III.3 of the Constitution;
  • • s 41(2) provides that the burden of showing a breach of human rights under s 41(1) rests on the person alleging it and may be discharged on the balance of probabilities.

 

Cannings J went on, at [70]-[71], to find the applicant’s human rights under s 41 had been breached and make orders restraining his removal from PNG as:

“The decisions of the respondents have been made with callous disregard to their impact on not only the applicant but also his wife and his child. Decisions have been made without considering their human toll. This is precisely the sort of situation in which s 41 should be invoked. A breach of the applicant’s right of protection against harsh, oppressive and other proscribed acts under s 41 of the Constitution has been proven.”

This remarkable decision seems to come from a different universe for lawyers, like me, used to working through the narrow lens of the Australian constitution where such broad powers of courts to declare executive action unlawful based on broad human rights are absent.

Dr Chris McGrath

Higgins Chambers

10 September 2020

Case note Berry v CCL Secure Pty Ltd [2020] HCA 27

In Berry v CCL Secure Pty Ltd [2020] HCA 27 misleading conduct caused the claimant to sign a contractual termination letter. All members of the court agreed in the result. An issue was the impact of a potential right to terminate the contract lawfully. The court clarified a number of matters relating to practice, and in particular, the onus of proof, which are worth noting.

The plurality, Bell, Keane and Nettle JJ, said at [39]: ‘although a claimant bears the burden of proof in the sense of the ultimate burden of establishing its case on the balance of probabilities, the burden of proof in the sense of introducing evidence is liable to shift constantly “according as one scale of evidence or the other preponderates”. Consequently, where, as here, it is established on the balance of probabilities that a wrongdoer purposely chose to achieve a certain result by means of a calculated deceit, the natural inference is that the wrongdoer was not and would not have been prepared to bring about that result by lawful means. … So, in the absence of contrary evidence, it may be inferred that the reason for engaging in the fraud was sufficient to dissuade the fraudster from proceeding by lawful means. The evidential burden thereupon shifts to the fraudster to adduce evidence sufficient to establish that, if it had not acted as it did, it would have been prepared to bring about the same result by lawful means. And in the absence of such evidence, it is fair to infer that there was not a realistic possibility of that occurring.’

Gageler and Edelman JJ also observed that, in the ordinary case, the pleaded counterfactuals limited the fact finding required by the court re causation.

 

Robert Quirk

Higgins Chambers

8 September 2020

Access to justice is the winner! High Court refuses security for costs order against community group

Last week, Bell J dismissed an application for $90,000 security for costs against a small community group in long-running litigation that has now reached the High Court against the expansion of the New Acland Coal Mine on Queensland’s Darling Downs.

In a narrow sense, the decision is an unexceptional application of well-established principles for security for costs. Bell J dismissed the application because special leave to appeal had already been granted, ordering security for costs was likely to stifle the appeal, the appeal raises questions of importance and the applicant had delayed in applying for security.

More broadly, however, the decision speaks of the ongoing challenge of providing access to justice for the community in litigation where major power imbalances exist due to huge disparities in financial resources.

The company applying for security for costs was a major mining company with hundreds of millions of dollars in revenue annually and, in effect, unlimited resources for litigation to expand its mining operations. The $90,000 it sought was insignificant to it such that the real purpose was to shut down the appeal after the company earlier failed to wind-up the group in the Queensland Supreme Court. The community group opposed to the mine expansion, the appellant in the High Court, had very few financial resources in comparison.

Importantly for access to justice in similar cases brought by community groups, Bell J recognised considerations for security for costs are different for a small, voluntary, charitable organisation compared to cases involving shareholders or creditors of an impecunious corporation who stand to gain financially by litigation prosecuted by the corporation.

These issues have long bedeviled public interest litigation by community groups against large companies. In 1988, a mining company used security for costs to shut down litigation in the Queensland Supreme Court by a small community group trying to protect the Mt Etna Bat Caves at Rockhampton, after which the company immediately destroyed the caves.

The challenge that procedural and financial obstacles pose for community groups will not end with the recent High Court decision but they may be, perhaps, a little easier in the future.

 

Stephen Keim SC

Higgins Chambers

26 August 2020

Indigenous Incarceration in the Northern Territory – Zoom Seminar

On 18 August 2020 the Law Council of Australia hosted a brilliant public seminar by Zoom on one of the most important challenges to Australian society of our time: Indigenous Incarceration in the Norther Territory: Progress made since the Royal Commission into the Detention and Protection of Children in the Northern Territory.

The seminar was be chaired by Law Council President, Pauline Spencer, and featured as panelists Mick Gooda, Olga Havnen and David Woodroffe.

A recording of the webinar is available on the Law Council website and Youtube:

 

 

In my Country Podcast: the Voices of Refugees Telling Their Stories

An insightful and topical podcast dropped into podcast feeds in July 2020 with the release of “In my Country”, a podcast dedicated to telling the stories of six Aussies who came to Australia as refugees or asylum seekers.

Host, Adam Wood speaks with Faisa, Alyas, Tenzin, Marcela, Liliana and Lago who tell their stories of the hardships in their homeland that made them leave and their experiences since making such a momentous decision.

Stephen Keim SC of Higgins Chambers was involved in organising a team of barristers and solicitors from Brisbane and London to listen and analyse each episode of the pod in order to make suggestions as to whether adjustments needed to be made for legal reasons.

The members of the team, not only, made useful suggestions but very much enjoyed listening to the stories of the contributors to the podcast and felt that they had received much from the experience.

n My Country is available at https://inmycountrypodcast.podbean.com/ and everywhere else you listen to podcasts. Download, rate and review now.

 

Stephen Keim SC & Kate Slack

Higgins Chambers

7 August 2020

Waanyi and Kalkadoon Elder’s inspiring admission to the legal profession

[caption id="attachment_469" align="alignnone" width="600"] Joshua and Sandra Creamer at Sandra’s admission to practice (photo: ABC / Joshua Creamer)[/caption]

Waanyi and Kalkadoon Elder and champion for Indigenous rights Sandra Creamer’s admission to the legal profession in Queensland is inspiring.

Her son and esteemed barrister, Joshua Creamer, moved her admission to practise — the first time in Queensland an Aboriginal barrister has moved the admission of their mother.

Joshua described his mother as a “strong, resilient, determined” woman and said she had overcome a great deal in her life, including domestic violence.

She studied law as a single mother of four.

Congratulations Sandra and Josh, from all at Higgins Chambers. We are proud to call you a colleague, Sandra.

Stephen Keim SC

Chris McGrath

Higgins Chambers

29 July 2020

QCAT upholds Cook Island heritage in school uniform policy case

On 10 July 2020, Member Traves of the Queensland Civil Administrative Tribunal found that the Australian Christian College Moreton Ltd was engaging in both direct and indirect discrimination by proposing to exclude a prep student with long hair from continuing to be enrolled in and attend the school. The decision, Taniela v Australian Christian College Moreton Ltd [2020] QCAT 249 is available online here.

The student, Cyrus, has an Australian Cook Island heritage and the Tribunal found that not cutting the hair of the eldest boy in the family, at an appropriate time chosen by the child’s parent, was a cultural tradition that came within the attribute of race for the purpose of the Anti-Discrimination Act 1991 (Qld) in that it was a characteristic of Cyrus’s cultural group.

In finding that the intention to exclude on the basis of hair longer than that permitted by the College’s uniform policy was not a neutral act simply based on failure to comply with that policy, the Tribunal (at [97]) drew upon (Watkins-Singh) v Aberdare High School [2008] ELR 561 in which it was held that the relevant comparator was a student whose racial customs or beliefs were not compromised by the uniform policy ([103]).

In finding that the same proposed conduct amounted to indirect discrimination, the Tribunal applied the House of Lords decision of Mandla v Dowell Lee [1983] 2 AC 548 in holding that whether a person of a certain culture can comply with a condition or requirement is not simply a question of physical capability but a question of capability in practice, consistent with the customs and cultural traditions of the cultural group ([109]).

The Tribunal rejected a claim of sex discrimination holding that the test for dress codes in respect of the way in which they apply different rules as between males and females is one of less favourable treatment rather than a requirement of uniform treatment. The Tribunal drew upon the way in which that question had been approached in Smith v Safeway plc [1996] ICR 868 (136]).

Broad lesson for schools and the community

The broad lesson from this decision for schools and the community is found in [127] and [128] of the Tribunal’s reasons, where Member Traves stated:

[127] While I accept that it is important for schools to have uniform policies that require certain standards of dress and appearance be maintained, I do not think it is reasonable to apply those policies without exception where exceptions are required for reasons based on race. It is reasonable that the school would approach such situations on an individual basis and not rigidly apply a policy inflexibly across the entire student population. I should add that all uniform policies are subject to such exceptions because they have been imposed by statute, namely by the AD Act.

[128] The school says that requiring Cyrus to comply with the policy is promoting equality and uniformity. That may be so in one sense, but such an approach fails to acknowledge the statutorily entrenched protections afforded by the AD Act which apply a different concept of equality; namely, one that recognises the right to be different and to be treated just as favourably notwithstanding that difference.

In short, school uniform policies that require certain standards of dress and appearance be maintained must allow for exceptions, such as race and cultural practices, to avoid unlawful discrimination.

Congratulations to Dr Chris McGrath of Higgins Chambers who appeared for the applicant in the proceedings instructed by Caxton Legal Centre.

Stephen Keim

14 July 2020

Reflections on Love and Thoms v The Commonwealth

In the recent case of Love and Thoms v Commonwealth [2020] HCA 3, in powerful judgments reminiscent of Mabo v Queensland (No 2), four judges of the High Court declared that Indigenous Australians can never be ‘aliens’ for the purposes of s 51(xix) of the Australian Constitution. In strong dissents, three judges refused to introduce a race-based distinction into the head of power.

The plaintiffs’ argument had two distinct and independent strands. The second, and more creative, strand was that which was ultimately successful, namely, that Indigenous Australians, because they are ab origene, from the very beginning, could not be alien to the Australian political community. The other strand was, in jurisprudential terms, much more incremental.

A paper by Stephen Keim SC, available at this link, examines the arguments before the High Court and the judgments of the Court. It was presented on 3 June 2020 at an online symposium hosted by Monash Law and the Australian Association of Constitutional Law (AACL).

A second paper by Melia Benn, available at this link, was also delivered to the symposium hosted by Monash Law and AACL on 3 June 2020, Mabo Day. Melia is a descendant of the Mamu and Gungangji peoples, and is one of only two Indigenous women at the Queensland bar.

A third paper by Kate Slack and Arron Hartnett, available at this link, was published separately in the Law Society NT journal, Balance, Vol 2, 2020 on 4 June 2020 and the Law Society of the ACT journal, Ethos, Issue 256, Winter 2020, pp 4-9.

A recording of the symposium hosted by Monash Law and the AACL is now available at this link.

 

Stephen Keim SC and Kate Slack

Higgins Chambers

19 June 2020

When is a person responsible as an “officer” of a company? ASIC v King [2020] HCA 4

In March 2020, the High Court changed the law concerning when a person is an “officer” of a corporation for the purposes of s.9 of the Corporations Act 2001 (Cth).

Until the decision in Australian Securities and Investments Commission v King [2020] HCA 4, (King) intermediate appellate courts had held that in order for a person to be an “officer” for these purposes, it was necessary that the person acted in an “office” of the company, in the sense of a “recognised position with rights and duties attached to it”.

The High Court’s decision in King swept away the limitation on the definition requiring an officer to “act in an office”; instead the courts’ future focus should be on whether the putative director has the necessary capacity to affect significantly the corporation’s financial standing by reason of his or her involvement in the management of the company, regardless of whether or not the person acts in an office of the company.

The paper available at this link discusses the decision in King and its consequences.

Matthew Brady QC

Higgins Chambers

19 June 2020

 

Will Australian courts follow the UK holding parent companies liable for harm caused by subsidiary companies?

The fascinating and compelling decision in Vedanta Resources PLC v Lungowe [2019] UKSC 20, delivered 10 April 2019, involved a procedural dispute over whether litigation relating to pollution in Zambia could be tried in the English Courts.

The judgment is significant for multinational UK parent companies with operating companies in the most underdeveloped countries, but also potentially has important implications for Australia.

Amongst a number of issues that it resolved, Vedanta applied earlier UK caselaw (especially relevant was Chandler v Cape PLC [2012] EWCA Civ 525) to find a parent company could be liable for harm caused by a subsidiary company under normal principles for establishing a duty of care where the parent company exercised a sufficiently high level of supervision and control of the activities of the subsidiary.

The decision has attracted numerous commentaries, including multiple online casenotes at Norton Rose Fulbright, UKSC blog, Blackstone Chambers, Hill Dickinson, Baker & Partners, Macfarlanes & Gowling WLG.

No Australian courts have yet applied Vedanta and there has been little reference even to Chandler but the decisions seem likely to influence the future direction of liability of parent companies in Australia.

In contrast to the UK courts, Australian courts have been very reluctant to pierce the corporate veil by holding parent companies liable for harm caused by subsidiary companies.

Former Chief Justice of Victoria Marilyn Warren examined this judicial reluctance in a fabulous 2017 article, “Corporate Structures, the Veil and the Role of the Courts” (2017) 40 Melbourne University Law Review 657. Her Honour compared the UK approach in Chandler with Australia and wrote:

“If we compare Chandler and the Australian cases, it is evident that the English law has taken a more generous approach when delimiting the circumstances in which it will consider imposing a duty of care on a parent company. … the key difference between the English and Australian approaches is not so much the different tests applicable for duty of care, but rather a difference in attitude towards imposing direct liability on parent companies. The approach in the Australian cases is rooted in a reluctance in corporations law to lift the corporate veil, and thus sets the bar high for the parent–subsidiary relationship that would give rise to a duty of care on the part of the parent. The approach taken by the Court of Appeal of England and Wales in Chandler, on the other hand, applies tort law without as much regard to the consequence that the imposition of a duty of care on the parent could have the practical effect of circumventing the separate legal status of group companies.”

Speaking of criticisms of the UK approach, her Honour noted (omitting references):

“One of the challenges of these cases is that they lie ‘at the hazy intersection of company and tort law, where bedrock principles such as limited liability, separate corporate personality, and traditional principles of negligence collide.’ Tort law’s objectives, including providing compensation for loss and injury and deterring wrongdoing, sit uneasily with the principle of limited liability where a company is unable to meet a judgment debt or it has been liquidated.”

And in response to criticisms about opening the floodgates, her Honour pointed to the practical reality of the difficulty of cases against parent companies:

“I think it needs to be remembered that this kind of litigation against a parent requires the plaintiff to provide a considerable amount of evidence about the parent–subsidiary relationship and the control the parent exerts over the subsidiary. This is no easy task in many cases, particularly where the events in question, as in asbestos cases, occurred many years ago. This factor, I think, reduces the likelihood of regular tort proceedings against parent companies for the activities of their subsidiaries; rather, it seems to me that they would be a proceeding of last resort for plaintiffs.”

There remain substantial obstacles to Chandler and Vedanta influencing Australian law, where, her Honour noted:

“The Australian experience has certainly been that direct parent liability has almost completely fallen off the radar, although much of that can probably be attributed to the narrow approach taken by the Australian cases.”

So, while the reasoning in Chandler and Vedanta is clear, compelling and attractive, ultimately, their influence in Australia remains to be seen.

But, at the very least, Australian lawyers should be aware of them and the possibility that direct parent liability can be brought back on the radar in the right case.

 

Dr Chris McGrath

Barrister

Higgins Chambers

19 June 2020