Bad is not all bad
Carr's tricky transition: needs to listen more; talk less

Bill bad for judicial powers but may please landowners


RAI COAST LANDOWNERS in Madang Province may be silently grinning amidst the frenzy created by parliament’s passage of the Judicial Conduct Bill.

This Bill, and the judge who ruled against them in a previous Supreme Court appeal, may be the keys to them re-opening a case which was, until December 2011, as good as dead and buried.

The judge is Derek Hartshorn, a member of the Papua New Guinea judiciary. Justice Hartshorn had earlier presided over landowner court action to stop dumping of mine waste in Basamuk Bay in Madang and was a member of the Supreme Court in related appeals.

A decision by Justice Hartshorn in December 2011 had rejected the appeal against mine waste dumping at Basamuk Bay in the Madang Province and accepted a cross-appeal from the mining companies in the Ramu Nickel Project that their dumping would not cause a public or private nuisance. This court case is covered by the new Bill, which has retrospective effect to 1 November 2011.

At the time, lawyers acting for the landowners had unsuccessfully taken issue with Justice Hartshorn arguing that prior to his becoming a judge his previous job had been as managing partner of law firm Blake Dawson Waldron.

It was also argued that this law firm had acted for Highlands Pacific Limited, which is a partner in the Ramu Nickel Project.

Section 5(1)(d) of the Judicial Conduct Bill 2012 could bring Justice Hartshorn within grounds of disqualification. This section reads:

A judge shall disqualify himself in a proceeding or shall not influence a proceeding in which the Judge’s impartiality might reasonably be questioned, including but not limited to instances where ... the judge has previously acted in the case in question as a Lawyer for a party, or participated in some other capacity...

If a judge refused to disqualify himself, Section 5(2) says that:

If it appears to Parliament that a Judge has failed to disqualify himself pursuant to Subsection (1) or has influenced a proceeding contrary to Subsection (1), Parliament by way of a motion may refer the Judge concerned to the Head of State to appoint a Tribunal to investigate the breach of Subsection (1) and provide a report to Parliament or may refer the matter to another authority for an appropriate course of action

The Head of State upon the advice of the Speaker would then appoint the Tribunal pursuant to Section 5(3).

When Parliament has referred the Judge concerned to a Tribunal for investigation subject to Sections 5(2) and 5(3), the next question is: What would be the likely outcome for His Honour and the case in question? Section 5(8) deals with this. It says:

Where Parliament has made a referral of a Judge to the Head of State pursuant to subsection (3) any Order or Judgment in that proceeding made by that Judge shall be stayed pending the provision of the report from the Tribunal to Parliament

If this is a correct reading and application of the Judicial Conduct Bill 2012, Tiffany Twivey, as lawyer for landowners from the Rai Coast area of Madang Province, would be pleased in a sense that it opens a legal window of opportunity for the landowners she represents. What a travesty of justice!

Oala Moi is from Boera village in the West Hiri area of Central Province. He is a landowner plaintiff in a judicial review case reviewing a 2009 decision by the Secretary for Lands and Physical Planning in declaring over 1,200 hectares of traditional sea and seabed area not to be customary land.

Apparently this declaration led to its portioning into Portions 2457C and 2458C, and which have been used to construct the PNG LNG causeway and jetty. Portions 2457C and 2458C are situated next to Portion 2456C where the gas plant is being built. Portion 2456C was portioned out of the former Portion 152 located in the West Hiri area of the Central Province. The balance of former Portion 152 became Portion 2459C. Portions 2456C, 2457C, and 2458C were granted as state leases to Esso Highlands Ltd in 2009.


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