Organic Law on the Ombudsman Commission

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Being an Organic Law to implement Division VIII.2 (Ombudsman Commission) of the Constitution.

(1) Sections 2 and 19 and Parts V, VI and VIII are intended to take effect, as provided for by Section 12(3)(a) (Organic Laws) of the Constitution as an Act of the Parliament.

“the Committee” means the Ombudsman Appointments Committee established by Section 229 (the Ombudsman Commission) of the Constitution;

(a) in the case of any State Service, provincial service or other governmental body–the Permanent Head of that service or body; and

(d) in the case of any Local-level Government–the President or Chairman of that body.

“statutory body” means any body to which Section 231(1)(a)(iv) (functions of the Commission) of the Constitution refers.

Except as provided by any other law, this Law does not apply to the powers, functions, duties and responsibilities of the Ombudsman Commission under Division III.2 (leadership code) of the Constitution.

(1) A person is not eligible for appointment as the Chief Ombudsman unless he is, in the opinion of the Committee, a person of integrity, independence of mind, resolution and high standing in the community.

(2) One of the Ombudsmen shall have such professional accountancy qualifications and experience as, in the opinion of the Committee, is appropriate.

(3) The other Ombudsman shall have such administrative or legal qualifications and experience as, in the opinion of the Committee, is appropriate.

(a) in the case of any citizen of Papua New Guinea appointed to office for the first time within 10 years after Independence Day–for a term of three years; and

(2) The first appointments to the Commission shall be arranged so that the terms of each member expires at a different time.

^[1]Subject to Section 229(3) (the Ombudsman Commission) of the Constitution, the salary and other conditions of employment of the members of the Commission shall be as determined by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given after receiving a report from the Public Services Commission.

A person is not qualified to be, or to remain, a member of the Commission if he is–

(f) of unsound mind within the meaning of any law relating to the protection of the person and property of persons of unsound mind; or

(b) subject to Subsection (2), engage either directly or indirectly in the management or control of a corporation or other body of persons carrying on business for profit; or

(c) except on leave granted by the Head of State, or because of illness, absent himself from duty for more than 14 consecutive days or more than 28 days in any period of 12 months; or

(d) subject to Subsection (3), acquire by way of gift or otherwise, or use or hold in any other manner any interest in, any property of Papua New Guinea or solicit, accept or receive any other benefit in addition to his terms and conditions of employment.

(2) Nothing in Subsection (1)(b) prevents a member of the Commission from holding office in a professional body in relation to which his qualifications are relevant.

(3) Subject to any Organic Law made for the purposes of Division III.2 (leadership code) of the Constitution, a member of the Commission may purchase, lease or otherwise acquire land in the same manner and subject to the same conditions as any other citizen.

(1) A member of the Commission may resign by giving three months’ notice in writing of his intention to do so to the Head of State.

(2) The period of three months specified in Subsection (1) shall be deemed to commence on the twenty-second day after the receipt by the Head of State of the notice except where the Head of State, acting with, and in accordance with, the advice of the Committee, by notice in writing to the member, fixes an earlier date for the commencement.

(3) A member of the Commission may withdraw his resignation at any time before the period of three months referred to in Subsection (1) commences.

(1) Subject to Subsection (2), a person who has attained the age of 55 years shall not be appointed or re-appointed as a member of the Commission and a person shall not be appointed or re-appointed for a period that extends beyond the date on which he will attain the age of 55 years.

(2) The Head of State, acting with, and in accordance with, the advice of the Committee, may, for special reason in a particular case, appoint or re-appoint a person who is over 55 years of age to be a member of the Commission but in no case can any member of the Commission continue to act as a member after he has attained the age of 60 years.

A person suitably qualified may be appointed to be an acting Chief Ombudsman or an acting Ombudsman–

(b) in the case of the absence from duty for any reason of the Chief Ombudsman or an Ombudsman.

Before entering upon the duties of their offices, the members of the Commission shall make the Declaration of Office before the Head of State or a person appointed by the Head of State.

For the purposes of Section 219(1)(a) (functions of the Commission) of the Constitution the functions of the Commission, in addition to the functions specified in Section 219(1)(b), (c), (d) and (e) (functions of the Commission) of the Constitution, are to investigate, on its own initiative or on complaint by a person affected, any conduct on the part of–

(c) any other service or body referred to in Section 219(a)(functions of the Commission) of the Constitution that the Head of State, acting with, and in accordance with, the advice of the National Executive Council, by notice in the National Gazette, declares to be a service or body for the purposes of this section.

(1) The Commission shall meet at such times and places as are fixed by the Chief Ombudsman.

(3) For the purposes of conducting an inquiry under this Law, the quorum at a meeting of the Commission is two.

(4) All matters before a meeting of the Commission shall be decided in accordance with the majority of votes.

(5) In the event of an equality of votes on a matter, the Chief Ombudsman has a casting, as well as a deliberative, vote.

(7) Subject to this Law, the procedures of the Commission are as determined by it.

(1) The Commission may, with the prior approval of the Prime Minister, by instrument in writing under the hand of the Chief Ombudsman, delegate to any member or officer of the Commission all or any of its powers and functions (other than this power or function or any prescribed power or function) so that the delegated powers and functions may be exercised and performed by the delegate in relation to the matters or class of matters specified in the instrument of delegation.

(2) Every delegation under Subsection (1) is revocable, in writing, at will, and no such delegation affects the exercise of a power or the performance of a function by the Commission.

(1) Any person may make a complaint to the Commission concerning any matter that is within the jurisdiction of the Commission.

(2) A letter to the Commission from a person in custody, or confined in a hospital or in an institution under the control of a governmental body shall not be opened by any person other than a member of the Commission or a person authorized by the Commission, and the person in charge of the place where the correspondent is in custody or is confined shall make all facilities available that may be necessary to have the letter properly forwarded.

(3) The Commission shall investigate the subject of any complaint received by it, other than a complaint that relates to a matter outside its jurisdiction, unless, in its deliberate judgement, it decides not to do so because–

(a) the complaint is trivial, frivolous, vexatious or not made in good faith; or

(c) the complainant has available to him another remedy or channel of complaint that he could reasonably be expected to use; or

(d) the complainant has not a sufficient interest in the subject of the complaint; or

(4) No decision by the Commission to decline to investigate or to defer or discontinue, an investigation into the subject of a complaint affects the Commission’s power to inquire generally into a matter on its own initiative.

(1) Before investigating any matter within its jurisdiction, the Commission shall inform the responsible person of its intention to make the investigation.

(2) Every investigation by the Commission under this Law shall be conducted in private.

(3) The Commission may hear or obtain information from any person who the Commission considers can assist and may make whatever inquiries it thinks fit.

(4) Nothing in this Law compels the Commission to hold any hearing and no person is entitled as of right to be heard by the Commission except that–

(a) where a report of the Commission may affect a State Service, Provincial Government or statutory body, the Commission shall provide reasonable opportunity for the Permanent Head of that service or the statutory head of that body, as the case may be, to comment on the subject of the investigation; and

(b) the Commission shall not make any comment in its report that is adverse to or derogatory of any person without–

(5) The Commission shall, in its discretion, at any time, during or after any investigation, consult any Minister who is concerned in the matter of the investigation.

(6) On the request of any Minister in relation to any investigation, or in any case where any investigation relates to any recommendation made to a Minister, the Commission shall consult that Minister after making the investigation and before forming a final opinion on the matter it has investigated.

(7) If, during or after an investigation, the Commission is, after considering any defence lodged by or on behalf of the officer or employee concerned, of the opinion that there has been a breach of duty or misconduct on the part of any officer or employee of any State Service, Provincial Government, Local-level Government or statutory body, it shall refer the matter, together with its report on the matter, to the Permanent Head of that service or the statutory head of that body, as the case requires, and shall send a copy of its report and any defence lodged to the responsible Minister.

(1) Subject to the provisions of this section and of Section 20, the Commission may from time to time require any person who in its opinion is able to give any information relating to any matter that is being investigated by the Commission to furnish to it that information and to produce any documents, papers or things that, in the opinion of the Commission, relate to any matter being investigated by it and that may be in the possession or control of that person.

(a) the person is an officer, employee or member of any State Service, Provincial Government, Local-level Government or statutory body; and

(b) the documents, papers or things referred to in that subsection are in the custody or under the control of any State Service, Provincial Government, Local-level Government or statutory body.

(3) The Commission may, by instrument in writing, summon any person who in its opinion is able to give any information relating to any matter that is being investigated by the Commission, to attend the Commission at a time and place specified in the summons for examination by it on oath or affirmation.

(4) The Commission may administer an oath or affirmation to a person appearing as a witness before the Commission whether the witness has been summoned or appears without being summoned, and may examine the witness on oath or affirmation.

(5) A witness attending before the Commission has the same privileges and is subject to the same penalties in relation to the giving of information, the answering of questions and the production of documents, papers and things as a witness before the National Court.

(6) Except on the trial of any person for perjury in respect of his sworn testimony, no statement made or answer given by that or any other person in the course of any inquiry by or any proceedings before the Commission is admissible in evidence against any person in any court or at any inquiry or any other proceedings, and no evidence in respect of proceedings before the Commission shall be given against any person.

(7) Where any person is required by the Commission to attend before it for the purposes of this section, the person is entitled to the same fees, allowances and expenses as if he were a witness in the National Court.

(1) Where the Prime Minister, after consultation with the Chief Ombudsman, certifies that the giving of any information or the answering of any question or the production of any documents or papers or things likely to–

(a) prejudice the security, defence or international relations of Papua New Guinea (including Papua New Guinea’s relations with the Government of any other country or with any international organization) or the investigation or detection of offences; or

(b) involve the disclosure of proceedings, deliberations or decisions of the National Executive Council, or of any committee of that Council which the Prime Minister certifies relate to matters of a secret or confidential nature, disclosure of which would be injurious to the public interest,

the Commission shall not require the information or answer to be given or, as the case may be, the document, paper or thing to be produced.

(2) Subject to Subsection (1), any law that authorizes or requires the withholding of any document, paper or thing, or the refusal to answer any question, on the ground that the disclosure of the document, paper or thing or the answering of the question would be injurious to the public interest does not apply in respect of any investigation by or proceedings before the Commission.

(1) Before entering on the exercise of the duties of his office, a member of the Commission shall take an oath or make an affirmation in the form in Part I of Schedule 1 before a Judge of the National Court.

(2) Every officer and employee of the Commission shall maintain secrecy in respect of all matters that come to their knowledge in the exercise of their duties and shall, before entering on the exercise of their duties, take an oath or make an affirmation in the form in Part II of Schedule 1 before a member of the Commission.

(3) Notwithstanding the provisions of Subsection (1), the Commission may disclose for the purposes of any investigation being conducted by it and in any report made by it, such matters as in its opinion ought to be disclosed in order to properly investigate the matter before it or establish grounds for its conclusions and recommendations, as the case may be.

(4) The power conferred by Subsection (3) does not extend to any matter that might prejudice the security, defence or international relations of Papua New Guinea (including Papua New Guinea’s relations with the Government of any other country or with any international organization) or the investigation or detection of offences, or that might involve the disclosure of the deliberations of the National Executive Council.

(1) The Commission may direct that any evidence given before it, or any document, paper or thing produced to it, be not published.

which the Commission has directed not to be published without the consent in writing of the Commission is guilty of an offence.

(1) The succeeding provisions of this section apply in every case where the Commission, after making an investigation under this Law, is of the opinion that–

(b) the law or administrative practice, the subject of the investigation, or any other law or administrative practice, is defective; or

(c) the practice, the subject of the investigation, is discriminatory within the meaning of any law prohibiting such practices.

(2) If in any case to which this section applies the Commission is of the opinion that any service, body, person or other appropriate authority should–

the Commission shall report its opinion, and the reasons for its opinion, to the Minister responsible for the relevant service, body or person and to the Permanent Head or statutory head responsible for the service, body or person, and may refer the matter to the Public Prosecutor if action by him is warranted and may make such recommendations as it thinks fit.

(3) If the Commission so requests, the responsible Minister, Permanent Head or statutory head, as the case may be, shall, within such period as is specified by the Commission, notify the Commission as to the steps (if any) that he proposes to take to give effect to its recommendations.

(4) Where the Commission is of the opinion that an administrative action has produced unfair or objectionable results and that that action was caused wholly or partly by legislation, the Commission shall forward a report on the matter to–

(b) in the case of legislation of a Provincial Government–the relevant Provincial Government; and

(1) The Commission may, in its discretion, publish the results of any investigation carried out by it by forwarding a copy of its conclusions, recommendations and suggestions to–

(d) the Speaker, who shall present it to the Parliament within eight sitting days of the Parliament; and

(j) any other person holding an official position as the Commission considers appropriate,

(2) The Commission shall, unless in its deliberate judgement, it considers that to do so may prejudice the security, defence or international relations of Papua New Guinea (including Papua New Guinea’s relations with the Government of any other country or with any international organization), forward a copy of its conclusions, recommendations and suggestions to the person on whose complaint the investigation was carried out.

(3) Where the Commission publishes an opinion that is adverse to or derogatory of any service, body or person, it shall, unless it has obtained the consent of the responsible person to do otherwise, include in the document published the substance of any statement the responsible person may have made in explanation of past difficulties, or present rejection of the Commission’s recommendations.

No proceeding of the Commission shall be held bad for want of form, and, except on the ground of lack of jurisdiction, no proceeding or decision of the Commission shall be challenged, reviewed, quashed or called into question in any court.

(b) within the limit of funds lawfully available to it, may appoint such other officers as, in its opinion, are necessary for the efficient performance of the functions of the Commission.

(3) Subject to this Part and to the Regulations, officers hold office on such terms and conditions as the Commission after consultation with the Public Services Commission, fixes.

(4) If an officer appointed under this section was, immediately before his appointment, an officer of the National Public Service, his service as an officer of the Commission shall be counted as service in the National Public Service for the purposes of determining his rights (if any) in respect of–

(b) furlough or pay in lieu of furlough (including pay to dependants or personal representatives on the death of the officer).

(5) The provisions of Section 115 of the pre-Independence law known as the Public Service (Interim Arrangements) Act 1973 apply in relation to offices in the Service of the Commission as if they had been specifically included in that section.

The Service of the Commission is subject to the control and direction of the Commission.

The Regulations may make provision in relation to the Service of the Commission and in particular, may–

(b) make provision for the establishment of a superannuation scheme to provide benefits for officers of the Commission on retirement, resignation, retrenchment or death.

(1) The Commission may appoint such temporary and casual employees as it thinks necessary for the purposes of this Law.

(2) Employees so appointed shall be employed on such terms and conditions as the Commission determines.

The Public Finances (Management) Act 1995 applies to and in relation to the Commission subject to the exceptions and modifications specified in Schedule 2.

A person who, having been summoned to attend the Commission, fails without reasonable excuse, the burden of proof of which lies on him, to attend the Commission or to produce any documents, books or writings in his custody or control that he is required by the summons to produce, is guilty of an offence.

A person appearing as a witness before the Commission who refuses to be sworn or to make an affirmation or to answer any questions relevant to the inquiry put to him by a member of the Commission, or having attended leaves the Commission without the permission of a member of the Commission, is guilty of an offence.

A person who willfully insults a member of the Commission, or willfully interrupts the proceedings of the Commission, or is in any manner guilty of wilful contempt of the Commission, is guilty of an offence.

A person appearing as a witness before the Commission, who willfully gives false evidence, is guilty of perjury and is liable to prosecution and punishment accordingly.

(b) may not be brought against any person except with the consent in writing of the Commission.

(1) A member of the Commission or an officer or employee of the Commission is not liable for any act or omission done or made bona fide and without negligence under or for the purposes of this Law.

(2) A member of the Commission or an officer or employee of the Commission shall not be called to give evidence in any court, or in any proceedings of a judicial nature, in respect of anything coming to his knowledge in the exercise of his functions.

(3) Anything said or any information supplied or any document, paper or thing produced by any person in the course of any inquiry by or proceedings before the Commission under this Law are privileged in the same manner as if the inquiry or proceedings were proceedings in a Court.

(1) For the purposes of this Law, but subject to this section, a member of the Commission may, at any time, enter upon any premises occupied by any State Service, Provincial Government, Local-level Government or statutory body over whom it has jurisdiction and inspect the premises and, subject to Sections 18 and 19 carry out in the premises any investigation that is within its jurisdiction.

(2) Before entering upon any premises the member of the Commission shall notify the Permanent Head or statutory head or other person in charge of the premises.

(3) The Prime Minister may after consultation with the Chief Ombudsman, from time to time, exclude the operation of Subsection (1) to any premises if he is satisfied that the exercise of the powers conferred by this section is likely to prejudice the security, defence or international relations of Papua New Guinea (including Papua New Guinea’s relations with the Government of any other country or with any international organization).

The Head of State, acting with, and in accordance with, the advice of the National Executive Council, may make regulations, not inconsistent with this Law, prescribing all matters that by this Law are required or permitted to be prescribed for carrying out or giving effect to this Law, and generally for achieving the purposes of this Law, and in particular for prescribing penalties not exceeding K500.00 and default penalties not exceeding K10.00 for offences against or contraventions of any regulations so made.

The provisions of this Law are in addition to the provisions of any other enactment, subordinate enactment or any rule of law under which any remedy or right of appeal or objection is provided for any person or any procedure is provided for the inquiry into or investigation of any matter, and nothing in this Law limits or affects any such remedy or right of appeal or objection or procedure.

PART I – OATH AND AFFIRMATION OF SECRECY TO BE TAKEN OR MADE BY MEMBERS OF THE COMMISSION.

“I, . . . , a member of the Ombudsman Commission, do swear that I will at all times maintain secrecy in relation to the affairs of the Commission and, in particular, that I will not directly or indirectly communicate or divulge any information that comes to my knowledge in the performance of my functions as a member of the Commission, except under compulsion or obligation of law or as provided by law.

“I, . . . , a member of the Ombudsman Commission, do solemnly and sincerely promise and declare that I will at all times maintain secrecy in relation to the affairs of the Commission and, in particular, that I will not directly or indirectly communicate or divulge any information that comes to my knowledge in the performance of my functions as a member of the Commission, except under compulsion or obligation of law or as provided by law.”

PART II – OATH AND AFFIRMATION OF SECRECY TO BE TAKEN OR MADE BY OFFICERS AND EMPLOYEES OF THE COMMISSION.

“I, . . . , (an officer or employee of the Ombudsman Commission, as the case requires) do swear that I will at all times maintain secrecy in relation to the affairs of the Commission and, in particular, that I will not directly or indirectly communicate or divulge any information that comes to my knowledge in the performance of my functions as an officer/employee of the Commission, except under compulsion or obligation of law or as provided by law.

“I, . . . , (an officer or employee of the Ombudsman Commission, as the case requires) do solemnly and sincerely promise and declare that I will at all times maintain secrecy in relation to the affairs of the Commission and, in particular, that I will not directly or indirectly communicate or divulge any information that comes to my knowledge in the performance of my functions as an officer/employee of the Commission, except under compulsion or obligation of law or as provided by law.”

Provision.	Modification.
Section 57	Not applicable.
Section 55	Not applicable.
Section 56	Not applicable.
Section 51	Not applicable.
Section 69	Not applicable.
Section 61	Not applicable.
Section 63	(a) applies only to financial statements.
	(b) applies as if references to Head of State were references to the Prime Minister.

Papua New Guinea Consolidated Legislation

Organic Law on the Ombudsman Commission