SUPREME AND NATIONAL COURTS 
Executive Intervention in Judicial Functions and Judicial Encroachment into Executive Functions – Defining the Boundaries 
Paper delivered at 
The National Conference on Development of the Underlying Law on
Administrative Law 
Gateway Hotel
Port Moresby
Monday, 27 November 2017 
___________________________________________________________________________

The Honourable Justice Logan RFD
A Judge of the Supreme and National Courts of Papua New Guinea
and of the Federal Court of Australia
An engrafted model of government
Papua New Guinea’s Constitution is hardly unique in providing for a distribution of the power of the Nation State between a parliament, an executive drawn from and responsible to that parliament and an independent judiciary. All Westminster style constitutional models provide for such a distribution. 
Nonetheless, for all its apparent familiarity, this model is, for Papua New Guinea, an engrafted model of government. It is, I suggest, at least helpful, if not essential, to introduce local consideration of the import of that model for relations between the executive and judicial arms of government by recalling that it has this feature.  
In respect of judicial power, the Constitutional Planning Committee observed in their 1974 Report:
In Papua New Guinea there have always been traditional peaceful means of resolving disputes and doing what is right in conflict situations, according to traditional notions of justice.
For the people of Papua New Guinea, the experience of independent, specialist officers of a Nation State exercising judicial power so as to adjudicate and, by the exercise of sovereign power, give finality to civil disputes or of a Nation Sate claiming a monopoly on the trial and punishment of those violating a code of unacceptable conduct began in the late nineteenth century with the colonial era. Though ever increasing in the frequency of its encounter over the course of the 20th century, the knowledge or experience of the exercise of this type of judicial power was far from universal in Papua New Guinea as at the time of Independence in 1975. The Constitutional Planning Committee considered that courts of justice were, “gradually becoming generally acceptable institutions in our society”. They considered that:
The advent of the Constitution and Independence provides the opportunity for these courts, appropriately modified to suit our needs, to become a vital part of the foundations on which our people seek freedom, fulfilment and total development, both personal and national.
Two generations after Independence, the gradual acceptance in Papua New Guinea, apprehended in 1974, of resort to an exercise of judicial power as a means of quelling civil disputes or dealing with those found guilty of criminal behaviour has undoubtedly accelerated but is as yet incomplete. The enthusiastic embrace of petitioning the National Court as a Court of Disputed Returns for the adjudication of electoral disputes after each general election is one measure of increased popular acceptance of judicial power, not to mention of interest in parliamentary democracy. 
That increased popular acceptance is mirrored, complemented and fostered by a steadily increasing rise in numbers of Papua New Guineans entering the local legal profession. At the time when the Constitutional Planning Committee furnished its report, Papua New Guinea’s Legal Training Institute (LTI), the body responsible for post-graduate, pre-admission, practical legal training, was barely two years old.  In those days, a class of the order of 20 prospective entrants to the local legal profession was the norm. These days, a class in the order of 100 prospective entrants to the profession is the norm at the LTI. An annual, graduating class of that order is equivalent to about 10% of the present membership of the PNG Law Society, the peak professional body of the PNG legal profession. No longer is the knowledge and understanding of the Westminster model of the distribution of sovereign power and the place within it of judicial power largely confined to expatriate administrators and lawyers and those locals in their service. It is ever increasingly, truly indigenous. 
An indication though of its incompleteness of acceptance in the general population is offered by the persistence in modern times in Papua New Guinea society, not just in remote areas in the Highlands but also in large towns and cities, of attacks on and murders of people accused of practising witchcraft. Such resort to violent self-help based on superstition, as opposed to conceding the administration of law and justice to the Nation State, is no new subject.
The Honourable Ralph Gore CBE began his association with Papua New Guinea in 1924 as the Crown Law Officer for the then Territory of Papua, a sometime British colony consigned to Australian administration shortly prior to the First World War. Gore ended his association some four decades later as the senior puisne judge of the Supreme Court of the Territory of Papua New Guinea, all within the period of Australian administration. Not without cause, Gore chose to title his account of his life and times in Papua New Guinea, “Justice versus Sorcery”. Gore’s book is replete with anecdotes of murders as a sequel to inexplicable deaths and attributed to a need to eliminate a sorcerer responsible for those deaths. For example, Gore relates:
Before it became known to the authorities, cases of murder from the Fore District came before me and were treated as ordinary cases of tribal murders where the motives were obscure. Upon discovery of the disease among the people it was found the murders were almost wholly related to it.
The Fore people attribute the deaths from Kuru to sorcery. It is no use arguing with them. They say, “Well, you white man, you take the sufferers away to hospital and, with all your medicines and skill, they die. You have never saved any of them. We say they die because someone has made sorcery directed to the victim and that is why he dies. We seek out the sorcerer and kill him.
Gore’s attitude to the prospect of self-government, expressed only a decade before it occurred, was this:
Self government in the true sense of the expression is a tall order for these backward people and should not be forcefully advocated during this period of transition. The people of the Territory have been nurtured by government and mission in marked benevolence throughout the years, with a policy devoted to their welfare carefully founded and wisely implemented, so if not interfered with by outside agencies they should in time succeed.
Half a century later, this view, though expressed with great sincerity and based on lengthy, relevant experience, is, to the modern reader, Papua New Guinean or otherwise, quaint, if not offensive. The attainments since then in all fields of endeavour, law and justice not the least, of Gore’s so-called “backward people” are truly remarkable and emphatically refute any conceit of superiority based on race or cultural heritage. Those attainments are the result of the fulfilment of a potential, arising from access to educational opportunities. 
One contemporary, academic commentator, Mr Mark Evenhuis of the Melbourne University Law School, has opined that there is an antithetical relationship between indigenous dispute settlement and introduced law in Papua New Guinea. The latter he describes as the result of “the practices and discourses of the early Christian mission, the Australian colonial administration and, finally, the post-independence state”. The notion of a civilising mission is undoubtedly evident in Gore’s observations about the prospect of self-government. Yet the very idea of a Nation State known as Papua New Guinea, governed by a central, sovereign authority, is a product of and a sequel to the colonial era. And the model of government chosen for Papua New Guinea by her Founding Fathers envisaged judicial power as an emanation of that Nation State, separate from other arms of government.
The persistence in modern times of sorcery based violence not materially distinguishable from the experience of an Australian territorial judicial officer may well be referable to the antithetical relationship to which Evenhuis refers. But that, in turn, reflects a progressively developing but not yet pervasive understanding and experience of the benefits of the chosen model of government and its related legal value system. The challenges in this regard for a developing country of resources, terrain and population disbursement should not be underestimated. It is all too easy for judges, lawyers and public administrators, with the benefit of an understanding of that model engendered by education and experience, to assume that their understanding is universally pervasive. It is not. Yet the notion that the effects of more than a century’s encounter with introduced law and its correlative, judicial power as a feature of government, can ever be reversed so as to leave intact a functional Nation State is, I suggest, as fanciful as thinking that disbanding the Pacific Islands Regiment and replacing it with warriors equipped with bows and arrows, spears and clubs is likely to yield an more effective Defence Force because the weaponry is traditional.
Further, to dismiss the chosen model of government on the basis that it is “introduced” is not just to discount its proven efficacy as a means of governing a modern Nation State for the benefit of all but also to ignore that the events that led to its development reflect behaviours that are neither exclusively Western nor confined to the past. The separation of powers, the roles of the branches of government and related conventions about relations between them are not an academic construct but the result of pragmatic compromise, of both evolution and revolution. It is to the development of that thesis that I now turn.
The origins and development of judicial independence under the Westminster model
As its name implies, a Westminster system of government is British and, even more particularly, English in its structure and origin. The present system is just peaceably evolutionary but also a sequel to cataclysmic struggles which engulfed the Kingdoms of England and Scotland in the mid-17th century and which were only resolved into a recognisably modern form in the early 18th century. 
In Anglo-Saxon times, it became the practice of English Kings occasionally to summon leading councillors and nobles to gather together for the purpose discussing affairs of state. Attendees were selected by the Monarch, not popularly elected, and offered the Monarch a sounding board about laws which the Monarch already had it in mind personally to make. Such gatherings were known as the Witan. These gatherings offered the Monarch the advantage of testing the reaction of the powerful in society to his proposals and garnering collective support for the implementation of those measures which commanded approval at the Witan. 
Another feature of Anglo-Saxon government was the regular holding of “shire moots”, which brought together in each county (or shire) the local lords and bishops, the sheriff, and, notably, four representatives of each village. It was at such moots that, in addition to the discussion of local issues, local disputes were heard and determined. Shire moots therefore exercised a form of judicial power as well as discharging local council functions. 
This practice of convening the Witan came to an end with the successful Norman Invasion of England in 1066. Instead, the Norman Kings initially arrogated to themselves personally all functions of government, albeit assisted by a council of selected advisers and Royal officials. At times, this council was augmented by a wider meeting of nobles and bishops, especially if a taxation measure was contemplated. The motivation for a wider meeting to discuss such a measure was surely pragmatic, ensuring that those on whom a responsibility for in one part paying and another part gathering the tax supported the measure. 
The Norman Kings retained a practice of appointing sheriffs as their county or shire officials and convened local courts known as county courts, adopting for this purpose the earlier, local governance, moots practice.
The United Kingdom’s parliament regards the modern House of Lords as having its origins in the wider meeting of bishops and nobles, of “Lords Spiritual and Temporal”, convened by the Norman kings and the House of Commons as having its origins in these county courts.
The remit of these historic county courts was the resolution of relatively minor, local disputes. It was the practical impossibility of the Monarch resolving in person and in a timely way more major disputes, either in the course of progresses around the kingdom or from the centre of government in London, which gradually led to the development of a class of professional judges in specialist courts dealing with particular kinds of disputes. 
Much of this development has its origins in the reign of King Henry II of England (1154-1189). In 1178, King Henry chose five members of his personal household “to hear all the complaints of the realm and to do right”. In this lies the origin of a court which adjudicated disputes between subjects, the Court of Common Pleas. By the middle of the 13th century, it had become the practice only to appoint to this court persons who were members of the order of Serjeants at Law, an order of specialist advocates with expertise in practising before the Court of Common Pleas. This appointment practice would endure until the great reforms wrought to the English judicial system by the Judicature Acts 1875. 
Another court which developed in medieval times was the Court of King’s Bench, which dealt with disputes to which the Monarch was a party. In its name lie its origins as an offshoot of a proceeding before the King in Council. It, too, came gradually to be staffed by persons with specialist learning and expertise in the law. It sat at Westminster, London. Another development in the reign of King Henry II was the commencement of a practice of non-King’s Bench judges being sent to regional centres, to adjudicate disputes in place of the King in Council, such regional sittings being termed “Assizes”, originally a reference to a sitting of the King’s Council.
Yet another common law court which developed in medieval England was the Court of Exchequer, the jurisdiction of which was the financial business of the Royal Household. Its jurisdiction also was an offshoot of the King in Council and came to be exercised by a specialist group of officials.
The notion that judges should not accept bribes from a party is also medieval in origin. In 1346, the practice began of obliging judges to swear that “they would in no way accept gift or reward from any party in litigation before them or give advice to any man, great or small, in any action to which the King was a party himself”. That practice was reactive to the disrepute of the administration of justice occasioned by popular perceptions of judicial corruption. At the same time, and probably also reactive to the combatting of the practice of acceptance of bribes, judicial salaries were increased.
Thus, by the time of the Tudor and early Stuart monarchies, common law courts staffed by specialist judges – Common Pleas, King’s Bench and Exchequer had all evolved. A separate court, the Court of Chancery, had also by then evolved. It was to this court that a subject aggrieved by an outcome at common law could take a dispute, praying in aid an exercise of the “King’s conscience”. That role came to be exercised by the Lord Chancellor and then by a group of specialists in the practice of conscience or equity. 
Even though by this period classes of specialist judges exercising the jurisdiction of these courts had developed, the notion that such judges were independent of the Monarch was far from settled. Neither was it settled that the Monarch in person was bound by the common law.
In 1607, in the Case of Prohibitions, in respect of a case in which King James I of England had purported personally to decide a dispute, Sir Edward Coke, then Chief Justice of the Court of Common Pleas, overturned that adjudication, declaring, “The King in his own person cannot adjudge any case, either criminal or betwixt party and party; but it ought to be determined and adjudged in some Court of Justice, according to the law and custom of England.”
In 1610, yet another notable difference occurred between King James I and Coke in relation to the limits of the Monarch’s power. Coke was summoned to appear before the King’s Privy Council. He was there requested to furnish a legal opinion on the subject of whether the King might, by proclamation, as opposed to Act of Parliament, prohibit new buildings in London, or the making of starch or wheat. This subject had been referred to the King by the House of Commons as a grievance and as supposedly against law. Coke requested and was granted time to consult his fellow judges, such was the importance of the question. 
Coke’s answer, which represented the collective view of the judges, has come to be known as the Case of Proclamations. That answer included the following pronouncements:
•	“the King by his proclamation of other ways cannot change any part of the common law, or statute law, or the customs of the realm” and
•	“the King cannot create any offence by his prohibition or proclamation, which was not an offence before, for that was to change the law, and to make an offence which was not”.
At that time, a judge did not enjoy any security of tenure. 
These assertions of the limits of Monarchical power saw Coke transferred from his position on the Court of Common Pleas to the Court of the King’s Bench. That transfer did not cause him to desist from asserting that there were limitations on the powers exercisable by the Monarch. In 1616 and as I relate in a paper delivered last year at a Commonwealth Parliamentary Association Conference, there occurred another sharp difference between Coke and King James I in relation to the limits of the latter’s powers. The difference has come to be known as the Case of Commendams. The name of that case is taken from the use by the King of an in commendam writ as a means of transferring income producing ecclesiastical property belonging to a bishophric to a Bishop while at the same time relieving the holder of that office from having in person to perform the duties of that office and allowing another to perform them in place of the bishop. The writ was a convenient means of rewarding those who deferred to the King. King James used such a writ to allow one Richard Neile to hold office as the Bishop of Coventry and enjoy the income from two properties associated with that bishophric without performing personally the duties of that office. The grant of the property to Bishop Neile by the King was contested before the Court of King’s Bench by two individuals who claimed that the property in question belonged to them. The case touched on the King’s prerogative to issue in commendam writs.
Coke and his fellow King’s Bench judges were about to hear the case when, on behalf of King James, his Attorney-General, Francis Bacon, appeared to assert the prerogative of Rege inconsulto [that the King has the power to advise judges before they rule] and ordered them to stay the proceedings until His Majesty advised them.  Instead, the judges proceeded to hear and determine the case, holding that the in commendam writ procedure was illegal. The judges thereafter sent a letter to King James in which they stated “in case any letters come unto us contrary to law, we do nothing by such letters, but certify your Majesty thereof, and go forth to do the law notwithstanding the same”. The judges were then summoned before the King who ripped up their letter in front of them, stating that “I well know the true and ancient common law to be the most favourable to Kings of any law in the world, to which law I do advise you my Judges to apply your studies”. While all the other judges were repentant, Coke maintained the position stated in the letter, informing the King “When the case happens I shall do that which shall be fit for a judge to do”. For this defiance of Royal authority, Coke was dismissed by the King from his office as Chief Justice of the Court of King’s Bench.
The Declaration of Breda, made by King Charles II at Breda in Holland in April 1660, by which he made solemn promises as to freedom of religion and amnesty and which formed the basis upon which, later in 1660, the Parliament ended the Protectorate and restored the Monarchy made no reference to the independence of the judiciary. Even after the Restoration, the view persisted on the part of later Stuart Monarchs that they were entitled to dismiss at will members of the judiciary. King Charles II removed 11 judges in the last 11 years of his reign. His successor, King James II removed 12 judges in his short, three-year reign. 
The reign of King James II came to an end in 1688 when he fled the kingdom at the time of the so-called “Glorious Revolution”. He was deemed by Parliament thereby to have abdicated the Crown, which was then offered by Parliament to his elder, Protestant daughter, Mary and her husband, Prince William of Orange on terms read out to them in the Declaration of Rights. That declaration was reactive to the perceived injustices which occurred during the reign of King James II and which were sanctioned or promoted by him. Later that year, these rights were enshrined by Parliament in statute in an Act we have come to know as the Bill of Rights 1688 (Eng). In that Act are to be found a number of fundamental principles upon which England’s and later the United Kingdom’s system of government has come to be conducted, notably:
•	the inability of the Crown to levy taxes by an exercise of prerogative power;
•	the prohibition of a standing army without parliamentary sanction;
•	the free election of members of Parliament;
•	freedom of speech in Parliament and an inability to impeach the same in any court or place outside Parliament.
Important though the Bill of Rights undoubtedly is as a foundation for the modern system of Westminster government, it, too, is noteworthy for a complete absence of reference to judicial independence and tenure. The subject had been canvassed in the parliamentary debates which immediately preceded the formulation of the Declaration of Rights. Its omission from that declaration and the subsequent Bill of Rights was probably referrable to the fast moving chain of events from the flight of King James II to the ascension of William and Mary and the consequential haste with which the declaration was drafted. 
In practice, commissions to judges issued during the reigns of King William and Queen Mary and their successor, Queen Anne, the last of the Stuart Monarchs, were issued on the basis that the judge held office during good behaviour rather than at pleasure. This practice was then taken up and enshrined in statute by the Act of Settlement 1701 (Eng) by which provision for and the terms of the succession to the Monarchy upon the death of Queen Anne without surviving heir was made by Parliament. Materially, this Act provided that, upon the accession of the House of Hanover, judges were to be appointed during good behaviour and their salaries were to be ascertained and established but that they were able to be removed by an address to the Monarch by both Houses of Parliament. 
The final development in relation to judicial tenure in Great Britain came in 1761 with the enactment of legislation providing that judicial commissions were not determined by the death of the Sovereign, otherwise termed the “demise of the Crown”. Given the subject of this paper, it is instructive to reproduce this excerpt of the speech made by King George III when commending the bill which became this Act to Parliament:
“I look upon the independency and uprightness of the Judges of the land as essential to the impartial administration of justice, as one of the best securities to the rights and liberties of my loving subjects, and as most conducive to the honour of the crown.”
How striking is the contrast between this Monarch’s appreciation of the need for judicial independence and that of his ancestor, King James I!
Relevance of History for Contemporary Relations between the Executive and the Judiciary
Another striking feature of King George III’s speech is the similarity of sentiments he voiced in relation to judicial power and the following excerpt from Papua New Guinea’s Constitutional Planning Committee Report some 200 years later:
The courts constitute the third pillar of the government of a country. They have a different function from those of the executive and the legislature, namely that of peacefully determining conflicts that arise between individuals; between different levels of government (in some countries); and between individuals and government; in accordance with law and justice.
Papua New Guinea’s Founding Fathers recognised that there are enduring features of the exercise of sovereign power which are not unique either to place or time. Checks on what would otherwise be an exercise of arbitrary power are inherently likely to be productive of tensions between those who wield executive power and those whose duty it is to see that it is only wielded according to particular norms and within particular limits. 
It is possible to identify behaviours in Papua New Guinea’s post-Independence history which differ in degree but not substance from those at large in relations between the Monarch and the Judiciary in 17th century England.
What has passed into history as “the Rooney Affair” offers an early, post-Independence example. The following description of events is taken from a paper which I delivered in 2015 on Law and Justice in Papua New Guinea to the Queensland Branch of the Australian Institute of International Affairs.
The Rooney Affair
On 31 May, 1979, the Minister for Foreign Affairs and Trade revoked the entry permit of a Dr Ralph Premdas, a non-national, who was a lecturer at the University of Papua New Guinea. Dr Premdas was entitled under his entry permit to remain in Papua New Guinea while employed at the University. He remained so employed at all material times.
At the invitation of a Minister, Dr Premdas had been providing, earlier that year, informal advice on a subject within that Minister’s portfolio responsibility. That role had occasioned quite some dissatisfaction within the Minister’s Department. Further, the then Prime Minister (Sir Michael Somare) was not in favour of Dr Premdas having any advisory role except “on an ‘out-of-office’ hours, friendly basis”. He informed the Minister accordingly. Matters deteriorated further with the upshot being the revocation of the entry permit. 
Under the prevailing migration law, the Minister’s decision was able to be reviewed on the merits by a Committee of Review comprised of three Ministers. This committee read the material, but did not permit Dr Premdas to appear before them. On 28 June the committee informed Dr Premdas that he was to leave Papua New Guinea by no later than 4 July 1979. On 3 July 1979, Dr Premdas instituted proceedings in the National Court in which he alleged that particular infringements had occurred in relation to the decision as confirmed by the committee to revoke his entry permit. That same day, the National Court granted an interlocutory injunction restraining the deportation of Dr Premdas, pending the hearing and determination of his court challenge. There was nothing unusual or unorthodox about the making of an order preserving the status quo, pending a final determination of the merits of a claim.
On 11 July 1979, the then Minister for Justice, the Honourable Nahau Rooney, wrote a letter concerning the case to the then Chief Justice of Papua New Guinea, the Honourable Sir William Prentice. The full text of that letter is set out in a footnote below. Suffice it to say, Mrs Rooney remonstrated with the Chief Justice about the interlocutory injunction, asserted that it was up to the Government to decide which non-citizens were welcome and that “the court has jeopardized its independence and neutrality by intervening in a matter which is obviously the sole prerogative of the Government” and exhorted “the Judiciary to make a greater effort to use their discretion effectively to develop the National legal system in the context of a proud and growing National consciousness” [sic]. Mrs Rooney also chose to circulate this letter “very, very widely”.
On behalf of the Judiciary, the Chief Justice replied to Mrs Rooney by a letter of 13 July 1979 in a measured but pointed way on the subject of judicial independence in the course of which he stated that, “I can assure you my dear Minister that judges of the National and Supreme Court will not accept directions from or pressure by the Minister for Justice or anyone else.” He begged the Minister that she “withdraw your letter, and apologise immediately and fully to National and Supreme Courts — with a distribution identical to that your letter has been given”.
The Minister replied on 17 July 1979, expressing contrition but also stating:
My chief concern is that the integrity of the Government and the citizen’s trust in their elected Government should always be maintained. There should never be any doubt that the Government has the power and authority to act immediately and decisively against any foreigner who may threathen the security or be seen to undermine the sovereignity of the Nation. [sic]
She further stated that while it was, “regretable that I referred to a specific matter currently before the Court … I still stand by the principle that I have re-iterated above.” [sic]
It is not necessary to relate the further dealings which occurred in July and in August 1979 as between the Minister and the Chief Justice and in the media. Suffice it to say, Mrs Rooney’s position essentially remained the same as set out in her letter of 17 July 1979. She came to be charged with a number of counts of contempt. 
In the meantime, Dr Premdas’ case had been transferred to the Supreme Court. On 4 September 1979 the Supreme Court held that his deportation did not infringe the PNG Constitution.
On 11 September 1979, the Supreme Court found Mrs Rooney guilty of contempt and ordered that she be imprisoned with light labour for eight months. 
The sequel to the Supreme Court’s order was recalled in 2012 by that longstanding observer and reporter of events in Papua New Guinea, the ABC journalist, Mr Sean Dorney:
Somare … made himself acting justice minister and set Ms Rooney free after just one day pending an appeal to the non-judicial Mercy Committee. Five judges including the chief justice and the deputy chief justice resigned. More than one thousand prisoners then broke out of jail from prisons all around PNG arguing that if it was good enough for the justice minister to go free it was good enough for them.
The judicial resignations were a direct result of the foregoing events. It is these which have passed into history as “the Rooney Affair”. The resignations followed in close succession in late 1979 and early 1980. Those who resigned included the Chief Justice and the Deputy Chief Justice and constituted a majority of the membership of the Supreme and National Courts at the time when Mrs Rooney had been found guilty of contempt.
The frustration and vexation voiced by Mrs Rooney was no different in substance, I suggest, from that voiced by King James I to Sir Edward Coke. 
Ministerial Criticism of the Victorian Court of Appeal in 2017
Similar Ministerial frustrations were evident, I suggest, in comments voiced earlier this year by Australian Federal Ministers in relation to what they apprehended was a pattern of unwarrantedly lenient sentencing in Victoria of those convicted of terrorism related offences. 
One Sevdet Ramadan Besim was sentenced to 10 years imprisonment, with a non-parole period of seven and a half years, for planning to attack a police officer on Anzac Day, 2015. While an appeal by the Commonwealth Director of Public Prosecutions against that sentence on the ground of manifest inadequacy was before the Victorian Court of Appeal, three Victorian based members of the Federal Ministry made public comments which included that the Victorian Supreme Court was becoming a forum for “ideological experiments” and that judges were putting the rights of terrorists before the safety of the rest of the community by sentencing them too lightly.  
Initially, the Ministers declined to apologise to the court for the making of such comments while the determination of the appeal was pending. Further, the current Australian Prime Minister, the Hon Malcolm Turnbull, chose to defend this stance stating that the courts, “cannot be and are not immune from criticism, which may extend to robust observations of a particular decision or penalty”. The Court of Appeal then required that the three Ministers show cause why they ought not be referred for prospection for contempt of court. The three Ministers thereupon reconsidered their earlier position and, by the Commonwealth Solicitor-General, tendered an unqualified apology to the court for the making of these remarks while the appeal was pending. The court accepted their apology and decided not to refer the ministers for prosecution. In so doing, the then Chief Justice of Victoria, the Hon Marilyn Warren, who had been presiding on the hearing of the sentence appeal, observed that the Minister’s comments were “fundamentally wrong” and that their delay in apologising was “regrettable and aggravated the contempt”.
The transgression apprehended by the Victorian Court of Appeal by the three Federal Ministers was not criticism of an alleged pattern deficient sentencing but the voicing of such criticism while an appeal brought by the Commonwealth was before the court and, further, the attribution to the Bench of ideological motivations. 
A sequel to the recent events in Victoria was a reference by the Australian Senate to its Legal and Constitutional Affairs Committee for a report on whether the existing common law of contempt in relation to comment on judicial proceedings ought to be replaced by statutory provision. The committee is due to furnish its report by 28 November 2017.
Permissible Political and other Public Criticism of the Judiciary
Public criticism of court decisions, even in robust terms, is not a contempt. Perhaps the most eloquent acknowledgement of this in modern times in relation to political criticism is to be found in judgements delivered in the Court of Appeal for England and Wales in R v Metropolitan Police Commissioner, ex parte Blackburn (No. 2) (Blackburn (No. 2)). The then Mr Quentin Hogg QC, MP, later, as Lord Hailsham, Lord Chancellor but then a senior Silk, leading Opposition politician and Privy Councillor, had written an article in “Punch” magazine under the heading “Political Parley” which was particularly critical of a recent judgement of the Court of Appeal:
“The recent judgment of the Court of Appeal is a strange example of the blindness which sometimes descends on the best of judges. The legis­lation of 1960 and thereafter has been rendered virtually unworkable by the unrealistic, contradictory and, in the leading case, erroneous, decisions of the courts, including the Court of Appeal. So what do they do? Apologise for the expense and trouble they have put the police to? Not a bit of it. Lambaste the police for not enforcing the law which they themselves had rendered unworkable and which is now the subject of a Bill, the manifest purpose of which is to alter it. Pronounce an impending dies irae on a series of parties not before them, whose crime it has been to take advantage of the weaknesses in the decisions of their own court. Criticise the lawyers, who have advised their clients. Blame Parliament for passing Acts which they have interpreted so strangely. Everyone, it seems, is out of step, except the courts .... The House of Lords over-ruled the Court of Appeal .... it is to be hoped that the courts will remember the golden rule for judges in the matter of obiter dicta. Silence is always an option.”
In Blackburn (No. 2), in dismissing the applicant’s motion that Mr Hogg be dealt with for contempt, the Court of Appeal accepted that a jurisdiction to deal with a person for scandalising the court existed but expressed the view that the jurisdiction ought sparingly to be exercised. Why that was so emerges from the following statements made in that case.
Lord Denning MR stated:
Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.
It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication.
Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right; nor, I would add, from saying what the occasion requires, provided that it is pertinent to the matter in hand. Silence is not an option when things are ill done.
In concurring, Salmon LJ stated:
It follows that no criticism of a judgment, however vigorous, can amount to contempt of court, providing it keeps within the limits of reasonable courtesy and good faith. The criticism here complained of, however rumbustious, however wide of the mark, whether expressed in good taste or in bad taste, seems to me to be well within those limits.
And Edmond Davies LJ stated:
The right to fair criticism is part of the birthright of all subjects of Her Majesty. Though it has its boundaries, that right covers a wide expanse, and its curtailment must be jealously guarded against. It applies to the judgments of the courts as to all other topics of public importance. Doubtless it is desirable that critics should, first, be accurate and, secondly, be fair, and that they will particularly remember and be alive to that desirability if those they would attack have, in the ordinary course, no means of defending themselves.
That the article in question “incorrectly attributed to the Court of Appeal decisions which were in fact decisions of the Queen's Bench Divisional Court” did not by that inaccuracy convert criticism in good faith into contempt of court.
Blackburn (No. 2) exemplifies in respect of political criticism an approach in respect of articles or statements critical of court outcomes, either by journalists or by members of the public generally, counselled by Lord Atkin in delivering the advice of the Judicial Committee in Ambard v Attorney-General for Trinidad and Tobago. His Lordship stated:
But whether the authority and position of an individual judge, or the due administration of justice, is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising, in good faith, in private or public, the public act done in the seat of justice. The path of criticism is a public way: the wrong headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.
That statement was made even though His Lordship acknowledged earlier authority pertaining to “small colonies consisting principally of coloured populations” which allowed that, in respect of findings of contempt account might relevantly be taken of local conditions. The language used in that earlier authority was reflective of the times but the point made by the Judicial Committee has a modern application which is not diminished by the contemporary offence one would take at such terminology. Local conditions are not a basis for regarding as contempt criticism, even robustly made, by politicians or others, of judicial decisions. 
Reaction by the Executive to Judicial Decisions
Robust criticism is one thing; direct intimidation by a member of the executive of a judge sitting in open court is quite another. 
Papua New Guinea’s modern history includes a report of the attempted arrest, on 24 May 2012, of the present Chief Justice, while he was sitting in court, by the then Deputy Prime Minister, the Hon Belden Namah MP accompanied by certain members of the Police Force and the Defence Force. A few days earlier than this reported event, the Supreme Court, of the bench of which the Chief Justice had been presiding member, had, by majority, affirmed an earlier judgement that the Hon Sir Michael Somare remained lawful Prime Minister. The day after that judgement was delivered, Mr Namah made a statement giving Sir Salamo and two other judges 24 hours within which to resign, lest they be arrested and charged with sedition. Mr Namah had not been Deputy Prime Minister in Sir Michael’s government. The charge proceedings against the Chief Justice were later stayed and later yet discontinued.
If it occurred as reported, the event was certainly dramatic. The period was one of notable tensions between what was at least the de facto government and the judiciary which had been ongoing since the time of those earlier Supreme Court proceedings. Further comment in relation to Mr Namah’s reported actions in 2012 must necessarily be circumspect as one allegation of alleged misconduct in presently undetermined Leadership Tribunal proceedings to which he is party concerns his alleged conduct on 24 May 2012. It is for the Leadership Tribunal to determine whether or not misconduct occurred as alleged. 
Another Deputy Prime Minister, now former Australian Deputy Prime Minister, the Hon Barnaby Joyce MP, was recently affected by a decision of an ultimate appellate court. The High Court of Australia, as the Court of Disputed Returns, recently ordered that, by reason of s 44(i) of the Australian Constitution, his place as the Member for New England in the Parliament is vacant. Mr Joyce’s reported comment after the judgement which ousted him from Parliament was that he “respected the court's verdict”. He also apologised for the inconvenience which would be caused by the consequential by-election.
Assuming that Mr Namah’s conduct was as reported, the contrast in reaction of the respective Deputy Prime Ministers to court outcomes could not be starker.
In the paper which I delivered to the Commonwealth Parliamentary Association Conference, I cited a number of contrasting examples of reactions by members of the Executive Government of Commonwealth member or sometime member nations to judicial decisions, which I relate below.
In December 2000, the Supreme Court of Zimbabwe struck down as unconstitutional the key elements of the Mugabe government’s “Fast Track” land reallocation programme.  The reaction of President Mugabe and his henchman was to intimidate and in March 2001 hound into resignation from office Zimbabwe’s Chief Justice, the Honourable Anthony Gubbay.
It is a mistake to think that a misunderstanding of the role of the Judiciary is confined to the Executive of developing nations. 
In 2011, the High Court of Australia struck down as unlawful the Gillard Government’s scheme to transfer to Malaysia, without prior assessment of their claims for refugee status, up to 800 asylum seekers who had irregularly arrived in Australia after 25 July 2011. The scheme entailed an arrangement between Australia and Malaysia, entered into on 25 July 2011, under which assessment of the asylum seekers’ claims for protection as refugees would be carried out in Malaysia by the United Nations High Commissioner for Refugees. Unlike Australia, Malaysia was not a signatory to the Refugee Convention. Article 33.1 of the Refugee Convention provided:
“No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”
Immediately after the High Court gave judgement, the then Australian Prime Minister, the Hon Julia Gillard MP, who had once practised as a lawyer prior to entering Parliament, accused the High Court of missing an opportunity to “send a message” to people smugglers.
Prime Minister Gillard’s reaction is in marked contrast to that of a predecessor in the office of Australian Prime Minister, the Right Honourable Robert Menzies QC, MP (as Sir Robert then was), whose government also suffered a reverse in the High Court in respect of the lawfulness of the implementation of a policy. In 1950, at the height of the Cold War and at a time when Australian troops were engaged in the United Nations defence of the Korean Government from communist forces, the Australian Parliament, in the implementation of the policy of the Menzies Government, enacted the Communist Party Dissolution Act 1950 (Cth). Amongst other measures, that Act purported to dissolve the Australian Communist Party, and to confiscate all of its property. 
The Australian Communist Party immediately challenged, before the High Court of Australia, the constitutional legislative competence of the Australian Parliament to enact this Act.  In a judgement delivered the following year, the High Court held that the Act was beyond the legislative competence of the Australian Parliament and thus invalid. The reaction of Prime Minister Menzies, who was also a lawyer, to the judgement was not, for example, to criticise the High Court for being “soft on communism”. Instead, he stated:
“On behalf of the Government, I say that this is not the end of the fight against Communism, it is merely the beginning.”
He accepted that the role of the High Court was to pronounce on the constitutional validity of legislation and respected its decision. His “fight” took the form of an endeavour by the means authorised by the Australian Constitution, to amend the constitution so as to confer the requisite legislative power on the parliament.  That required means included the successful passage of a referendum. As it transpired, the referendum was not passed either by the requisite majority of the Australian States or by an overall majority and thus failed. And so the Communist Party was not banned. The case stands to this day in Australia as an important example of the limits of our parliament’s ability to circumscribe civil liberties, even of the promoters of unpopular causes.
Last year, when Papua New Guinea’s Supreme Court held that the detention of asylum seekers on Manus Island violated the National Constitution, the immediate response of the Prime Minister, the Honourable Peter O’Neill MP, was to state publicly that the government would abide the order of the court.  That statement was made even though, as a matter of national policy, the Papua New Guinea government had made an arrangement with the Australian government for the detention there of those asylum seekers. 
In modern times, guidelines have been developed within the Commonwealth concerning practices with respect to relations between the three branches of government which best promote these ends. They are the product of the collective wisdom and experience of Commonwealth nations large and small, developed and developing.
These guidelines have come popularly to be called the “Latimer House Principles”. That is because the initiative for their adoption may be traced to a conference sponsored by the Commonwealth Parliamentary Association, the Commonwealth Legal Education Association, the Commonwealth Magistrates’ and Judges’ Association and the Commonwealth Lawyers’ Association, which was held in the United Kingdom at Latimer House, Buckinghamshire, in June 1998.  The product of that meeting was considered by a working group of Law Ministers drawn from Commonwealth member countries, adopted by Commonwealth Law Ministers and then, at their meeting in Abuja, Nigeria, in December 2003, endorsed by Commonwealth Heads of Government. 
The text of the Latimer House Principles is readily accessible via the Commonwealth Secretariat’s website. Those principles promote mutual respect by the respective branches of government for the roles respectively assigned to them and counsel against conduct which is subversive of assigned constitutional roles.
With respect, the reaction of Prime Minister Gillard to the court outcome was not consistent with Latimer House Principles whereas the reactions of Prime Ministers O’Neill and Menzies in the examples cited were.
Communications, Formal and Informal, Between the Judiciary and the Executive
The separation of powers does not mean that members of the Judiciary and of the Executive must lead separate lives. Such an approach is antithetical to good government. 
Both the Constitution (in relation to the Judicial and Legal Services Commission) (in respect of the Chief Justice and Deputy Chief Justice) and statute, notably the Post-graduate Legal Training Act 1972 in relation to membership of the Council of the Legal Training Institute (in respect of the Chief Justice and another judge), envisage that the Judiciary will participate in particular Law and Justice Sector decision-making in conjunction with the responsible Minister. This aside, both formal constitutional provision as well as convention dictate that the Chief Justice will exercise responsibilities in relation to court administration. Those responsibilities cannot be discharged without dealing with the responsible Minister and, at times, officers of his department, particularly in relation to matters of the budget for the courts. Both constitutional prescription as well as convention dictates that a Chief Justice consult with his or her fellow judges in relation to the administration of the business of the courts. A correlative is that judges should consider it part of their duty to assist the Chief Justice in this regard. Here, too, dealings with officers of the Executive might permissibly occur.
In relation to all such dealings, the point is that they occur between the judicial branch of which the Chief Justice is head and the Executive. It is the Chief Justice who is the channel of communication, except insofar as in the administration of the courts, he or she has established another channel in relation to particular subjects. If so, then a judge or judges’ committee must ensure that the Chief Justice is briefed in on communications which occur with the Executive. That may be formal or informal according to circumstance and established protocols. One mechanism, for example, may be via reports furnished to the regular Judicial Consultation Meetings. 
If the Executive wishes to have the services of a judge for a particular task of national importance, for example, the conduct of an inquiry, convention dictates that the responsible Minister approach the Chief Justice as head of jurisdiction, rather than seek out a particular judge. This is but an example of the role of a Chief Justice as Head of a branch of government and thus the channel for communications to and from that branch to another branch. 
Many circumstances will give rise to occasions when informal contact between the Chief Justice or another judge and a member of the Executive, Minister or senior officer, departmental or otherwise (e.g. Public Prosecutor or Public Solicitor) occurs. Obviously enough, private conversations concerning particular cases are not just mutually unethical but may also amount to an unlawful interference (or attempt) in the administration of justice. But much public good may result from informal discussions about systemic issues relating to Law and Justice. Discretion, circumspection, conscience and the paramount need not to compromise judicial independence dictate the relevant boundaries for both a judge and the other party, member of the Executive or otherwise. While that means that a judge should not cultivate a politician (and vice versa), it just not mean that one must avoid the other, much less avoid discussion about Law and Justice Sector issues. The same can apply in relation to dealings with a Police Commissioner or, in relation to military discipline, a Defence Minister or Defence Force Chief.
The Australasian Institute of Judicial Administration, on the council of which Papua New Guinea is represented, has published a Guide to Judicial Conduct, the second edition of which is available in electronic form from that organisation and under current review contains sound guidance which supplements and complements the Latimer House Principles in relation to dealings between the Judiciary and its members and the other branches of government. 
Acceptance by the Judiciary of the Limits of its Role in National Governance 
It is to the Ministry, not the Judiciary, to which the general administration of legislation is consigned. In keeping with this, it is the Ministry, not the Judiciary, which is supported by a professionally trained civil service. 
The association of the Judiciary with events is necessarily case specific whereas that of the Executive is or may be ongoing. In the event that a justiciable controversy is brought before the courts, the Executive may be made to answer for the legality of particular conduct. For the wisdom or otherwise of particular value judgements made or not made in the course of ongoing administration the Executive answers to Parliament and, periodically, to the electorate. Via the freedom of the press, the Executive also answers and reacts as thought fit, to the wider court of public opinion.
The United States Constitution also contains an explicit separation of legislative, executive and judicial powers. Notably, in Marbury v Madison, Marshall CJ, remarked of the role of the Judiciary:
“It is, emphatically, the province and duty of the judicial department to say what the law is.”
In the Australian High Court case, Attorney-General (NSW) v Quin, Brennan J, in referring to this case and to the role of the respective roles of the Judiciary and the Executive under a constitution which also provided for a separation of powers stated:
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power.  If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”
Marbury v Madison has been cited with approval on at least two occasions in cases determined by the Supreme Court. Having regard to the separation of powers for which the PNG Constitution provides, it is difficult to see why the principle for which that case stands does not apply with equal force in Papua New Guinea.
It is not only cases where large constitutional questions are abroad which may be productive of tension between the Executive and the Judiciary. Judicial review cases, particular where the jurisdictional error alleged is unreasonableness, are fraught with that potential. 
So, too, in light of the modern conception that it is the role and duty of the Judiciary to determine the merits of a claim by the Executive for exemption from disclosure of information in a document or class of documents on the grounds of public interest immunity, is the determination of claims for such exemption. Even though it is not for the Executive conclusively to determine claims for such exemption, an appreciation of the resources available to and ongoing public administration responsibility of the Executive informs the affording of weight by the Judiciary to a considered, detailed claim by affidavit for exemption, especially where that affidavit is made by a political officer. 
Public law cases aside, the pervasive role of officers of the Executive, senior and junior, in the administration of modern nation state necessarily means that the State or its officers or agencies will be a party to many civil cases, great and small, before the courts. The determination of the existence of a cause of action and the assessment of any damages in such cases is for the courts. Questioning of that role by the Executive is subversive of the rule of law. On the other hand, within the limits of constitutional legislative competence, it is within the remit of the Parliament, if so persuaded by the Executive, to limit or extinguish causes of action against the State or to provide for particular conditions precedent. Subject to those limits and then only as raised by a particular case, it is incumbent on the Judiciary to respect that role of the Parliament.
Necessarily, the State will always be a party to proceedings in the criminal jurisdiction. It is thus to the judicial branch to which the determination of guilt or otherwise is also so consigned and, in respect of the guilty, the imposition of punishment is consigned. The recent Australian Ministerial statements about the Victorian judiciary, cited above, offer a reminder of the boundaries between legitimate criticism and contempt in relation to the sentencing role of the Judiciary.
Judicial respect for the role of Parliament lies at the heart of giving primacy to the text of legislation in statutory construction. Where, for example, paying due regard to context and purpose the language of a statute does not bear a meaning for which an officer of the Executive contends, it is the constitutional duty of the Judiciary to state that in a given case. It is then for Parliament to amend that text if so persuaded by the Executive. For the Judiciary to afford uncritical deference to a construction of a statute promoted by the Executive is subversive not just of the role of the Judiciary but also that of Parliament.
Writing extra-judicially in 2002, the Honourable Michael McHugh AC, then a judge of the High Court of Australia, observed of the doctrine of the separation of powers:
“In theory, the doctrine constructs a system that avoids concentrating too much power in any one body of government – the three powers are separated from one another and “none is supposed to trespass into the other's province”.  Furthermore, no arm of government is supposed to abdicate power to another arm.  The premise of this construct is not a harmonious relationship but a checking and balancing of power.  Inevitably, the checking provides the blueprint for, and generates, tension between the three arms of government.”
His Honour’s conclusion was:
“Tension between the Executive and the Judiciary is inevitable.  It is unrealistic to think that it can be eliminated.  But it can be reduced, if the Executive and the Judiciary recognise ‘that each has a role to perform and that each is better equipped to carry it out than the other’.  As Professor Pearce has said, ‘[f]or the good of our society, it is better for the combatants to realise that they are there to serve the people, not their own ends, and to adapt their conduct accordingly’”.
[Footnote reference omitted]
In the paper which I delivered last year to the Commonwealth Parliamentary Association Conference and after citing these observations, I remarked:
These same sentiments apply in relation to relations between the parliament and the judiciary.  The virtue and value of the Latimer House Principles is that they specify conduct which can reduce the inevitable tensions between the branches of government and thus serve the end of the good of a society.
It is no less important for the reduction of these “inevitable tensions” that we in the Judiciary acknowledge and observe the limits of our constitutional remit than it is for the other branches of government so to do.

(C)	J. A. Logan, 2017. Moral right of author asserted. Non-exclusive publication licence granted to the Independent State of Papua New Guinea and the Commonwealth of Australia.