Canberra, 12 March 1968
Confidential
Papua and New Guinea: Parliamentary Commissions of Inquiry Ordinance, 1967
Proposal
This submission seeks approval for withholding assent from the Parliamentary Commissions of Inquiry Ordinance 1967 which was passed by the House of Assembly for Papua and New Guinea against the opposition of Official Members.
Background
2. The Ordinance was introduced by a European elected member to establish, as he put it, ‘machinery for this House of Assembly to appoint a commission to investigate matters of public importance which the House considers warrant special investigation.’ He explained that he considered that the existing Commissions of Inquiry Ordinance 1951 was unsatisfactory as it left to the Administrator’s discretion whether a particular commission should be established; and whether a report of a commission should be made public.
3. The new Ordinance would enable the House to set up a commission, not necessarily composed of members of the House, to inquire into any matter which the House considers it is necessary to inquire into for the public welfare. The matters on which the House could then initiate enquiries—without the Administrator having any say—could include matters which are properly the responsibility of the executive and complaints by individuals where legal remedies exist in the courts.
Executive responsibility
4. In a Parliamentary system of government, commissions of inquiry are a matter for the executive. The existing Ordinance similarly vests the authority in the Administrator. The proposal that the House should have a parallel power to conduct inquiries is contrary to the principles of executive responsibility and to the pattern of government being followed in the Territory.
Select Committees
5. The House of Assembly may of course appoint Select Committees and it has done so. While a Select Committee can inquire into the whole range of matters proposed for Commissioners of Inquiry under the Ordinance it is a substantial departure to provide for Commissioners who may or may not be members of the House of Assembly. Crown privilege is customarily observed in relation to Select Committees. It would also be a different situation if there were an Ordinance assented to by the Government giving statutory recognition to the right of the House of Assembly to appoint such a Commission.
Crown privilege
6. The Ordinance provides that documents are to be produced unless it can be shown that they are not relevant. This provision could possibly be held to exclude a claim of Crown privilege thus opening the way for publication of government information of a kind for which Crown privilege would normally be asserted and ordinarily granted.
Ombudsman
7. In the same meeting of the House of Assembly as that at which this Ordinance was passed a resolution was also passed in the following terms:—
‘That the House request the Administrator to appoint under the Commissions of Inquiry Ordinance 1951 a Commission of Inquiry to inquire into and report on the desirability and the practicability of the establishment for the Territory of an office of Parliamentary Commissioner or Ombudsman and the form that such an office might take, taking account of inquiries, proposals and experience in Scandinavia, Great Britain, New Zealand, Australia and elsewhere.’
The Administrator subsequently informed the House that he did not consider that the topic warranted setting up a Commission of Inquiry but he undertook to furnish a detailed report to the House of Assembly and this is now being prepared. The Parliamentary Commissions of Inquiry Ordinance 1967 covers some of the same ground as the proposals for [an] Ombudsman or Parliamentary Commissioner.
Recommendation
8. I recommend that assent be withheld from the Parliamentary Commissions of Inquiry Ordinance 1967 on the grounds that:
(a) the existing resources
• the power of the House to appoint Select Committees
• the power of the Administrator to appoint Commissions of Inquiry
—have not been shown to be deficient or unsatisfactory;
(b) the power to appoint Commissions of Inquiry is a power that it is appropriate for the executive to discharge;
(c) the Ordinance opens up the possibility in a new and additional way of encroachment by the legislation1 into the functions of the judiciary in that commissions could be appointed without the agreement of the Administration in matters where legal remedies were available under law;
(d) the Ordinance could be held to deny Crown privilege for Government information of a character for which Crown privilege is ordinarily claimed and customarily granted by the Courts;
(e) the Ordinance overlaps at least in part the enquiry now being held by the Administration into the proposal for an Ombudsman as required in the resolution of the House.2
[NAA: A5868, 11]
1 This should perhaps read ‘legislative’.
2 On 26 March, Cabinet agreed that assent should be withheld and it indicated that in explaining the grounds upon which the decision had been made, Barnes should rely on sub-paragraphs 8(a) and (d) (decision no. 97, NAA: A5868, 11).