By BRYAN KRAMER
PNG Chief Migration Officer(CMO) Mataio Rabura has issued a travel ban against National Fraud & Anti-Corruption Directorate Australian based lawyers Greg Egan and Terence Lambert from travelling into PNG.
Mr. Rabura issued the directive on 8th September 2015 to all International Airlines and PNG Provincial Border Posts directing them not to uplift Egan or his junior Counsel Lambert to enter PNG. The notice stated in no circumstances are they permitted to allow Egan and Lambert into PNG and failure to comply with the instructions may result in a penalty fee imposed onthe airline.
Egan an Australian Lawyer has been practicing law in PNG since 1988 he is currently briefed out by Jema Lawyers to act for Director of National Fraud & Anti-corruption Directorate Mathew Damaru and his Deputy Timothy Gitua in a number of National and Supreme Court cases relating to the warrant of arrest against the Prime Minister. He also acts for Task Force Sweep Chairman Sam Koim challenging the Prime Minister’s NEC decision to disband the Anti-Corruption Agency back June 2014 which is listed for trial on 29th September 2015.
The decision by CMO to issue a travel ban against Egan comes after the failed bid by the Prime Minister, James Marape and Commissioner of Police seeking orders from the Court to prevent Jema Lawyers and Egan from representing Damaru and Gitua.
Jema Lawyers and Egan were successful in their Supreme Court (SC) application in March 2015 to join Marape's SC Appeal SC87. Marape filed the appeal proceedings challenging an earlier decision of National Court by Judge Kariko who refused Prime Minister and Marape’s application seeking interim stay order preventing members of Police Force from effecting their arrest in relation to the Paraka Lawyers scandal.
Marape and Prime Minister used SC proceedings to obtain an temporary stay order against their arrest pending the determination of the appeal. Damaru and Gitua then joined those proceedings and filed an application seeking orders the Court remove the temporary stay orders preventing them for arresting both Prime Minister and Marape.
Following the decision by SC to allow Damaru and Gitua to join Marape then filed a further appeal seeking to over turn that decision. The appeal was listed for hearing 2nd September 2015, However Commissioner of Police Gary Baki then filed a further application supported by Prime Minster seeking orders to prevent Jema Lawyers and Egan from representing both Damaru and Gitua in the proceedings. The Supreme Court dismissed Baki’s application raising concerns Baki was not coming to court with clean hands and serving the interests of the Prime Minister and Marape instead of the Police.
Following that ruling parties then argued Marape's appeal against the earlier decision allowing Damaru and Gitua to join the proceedings on 2nd September 2015. While the Supreme Court is yet to hand down its ruling the Chief Migration Officer (CMO) has gone ahead and issued a letter on 8th September 2015 preventing Egan and his colleague from traveling to PNG to appear at the proceedings.
Jema Lawyers acting for Egan and Lambert have filed Judicial Review in the National Court requesting the Court to review the decision of the CMO issuing a ban on their travel to enter PNG. They are seeking to invoke the Court's powers to quash (void) CMO’s directive. A Judicial Review is a legal process that is concerned with the decision making process rather than the decision itself.
Jema lawyers are challenging the decision based on the grounds it was done in bad faith to prevent Egan and Lambert from representing the Fraud and Task Force Sweep cases against the Prime Minister. Further the directive failed to comply with Migration Act therefore it is unlawful, void and to no legal force or effect. It is also “Ultra Vires” which is Latin meaning beyond one's legal power or authority, in that CMO exceeded his powers and acted without any lawful authority issuing a ban against both Lawyers.
Further still it’s a denial of natural justice insofar as the CMO failed to inform Egan and Lambert of the decision or afford them the right to be heard or respond.
Lastly based on “Wednesbury principle of Unreasonableness.” A legal principle where a decision is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. The term was derived from 1948 English law case Associated Provincial Picture Houses Ltd. versus Wednesbury Corporation (1948) where the court gave three conditions on which it would intervene to correct a bad administrative decision, including on grounds of its unreasonableness.
Until the matter is determined at trial which may take several months if not a year Jema Lawyer have filed a motion (application) for an interim stay (temporary stop order) against CMO’s directive so they may continue to attend to several Court matters that are currently in progress.
This is not the first time O’Neill Government has acted in a deliberate and manipulative manner to achieve its own cause. In December 2012 Chief Migration Officer issued a similar directive against PNG’s infamous lawyer Greg Sheppard. When the story broke Prime Minister denied there was any deportation against Mr Shepard. Extracts from National Report include
Prime Minister said he was aware that there was a search warrant and an investigation under way into the management and disbursement of tens of millions of kina in a trust fund held by Sheppard’s Young and Williams Lawyers.
The Prime Minister said Sheppard had a fiduciary duty to reconcile for some K100 million [US$47.9 million] with which he was entrusted.
He said so far no report of any kind had been forthcoming and until that happened, investigations would continue.
In response Sheppard yesterday said: "I know there is no deportation order but they tried to deport me nonetheless."
He produced a copy of a letter purportedly written by Chief Migration Officer Mataio Rabura on Nov 18, instructing all airlines flying into PNG to ban uplifting into PNG of Greg James Sheppard.
The letter reads in part: "This serves to advise all international operating airlines that Mr. Gregory James Sheppard, an Australian national, is banned from entering PNG and that he is not to be uplifted into the country."
No reason was given for the advice.
Sheppard said that his firm had received K50 million [US$23.9 million] as lawyers for a trust account held under the name Inclusive Education for National Development for Community Trust.
"I couldn’t agree more with him (prime minister). If such a serious step as deportation is intended, the basis of the deportation should be known and stated with certainty. If there is an investigation into my trust account, I should be here in PNG to assist with that investigation and answer any questions that may arise, not deported without due process out of the jurisdiction.
"I do not know of any investigation into my trust account. This trust account, which incidentally is professionally managed by a certified practicing accountant and audited every year under the Lawyers Act, is also audited and cleared by an international auditing firm. I have not received any complaint into my trust account, and the government itself has never made any request for information.
"Until very recently the only correspondence I received concerning this fund was from an adviser named Dominic Diya in the Prime Minister’s Office who demanded large payments to himself from the fund."
He said details of every transaction was available and would be made available when an authorized request was made for it.
It is unclear what came of the investigations into Sheppard’s trust account whether he released the funds to the Prime Minister or why the travel ban against him was lifted. However ironically he now acts for the Prime Minister.
In November 2013 PNG SDP communications officer Mark Davis was deported back to Australia for publishing press statements by Chairman of PNGSDP Sir Mereke Morauta who was critical of Prime Minister Peter O'Neill's government decision to expropriate, take over the Ok Tedi gold and copper mine. It was believed the move by O’Neill was to take possession and control of PNGSDP's long term fund (PGK4.1 Billion) parked in an offshore Singapore account. The fund was set up in trust for Western Province people and used to address the environmental damage caused by mine after its closure and also ensure a financial future for the people. Following the decision Mekere filed proceedings in the Singapore Court to prevent O’Neill getting access to the funds concerned it would end up misappropriated or abused. PNGSDP is also fighting to have its shares in Ok Tedi Mining reinstated, and failing that, for compensation to be paid to PNGSDP by the Government. The matter is currently before the Singapore Supreme Court.
Following Mark Davis’s deportation Minister of Foreign Affairs & Immigration Rimbink Pato said that Mr Davis was deported because he had breached the conditions of his work permit and was issuing media statements on behalf of the PNGSDP which it considered to not be acting in the best interests of the country. In other words he was deported for doing his job and being critical the O'Neill's Government efforts to illegally takeover Ok-Tedi Mine.
In May 2015 O’Neill announced a ban against Australians from travelling to the Autonomous Region of Bougainville, following Canberra's announcement of plans to open a new diplomatic mission on the island.
On 2nd July 2015 ABC news reported Australian Foreign Affairs Minister Julie Bishop promised that Australia will not be a safe haven for the proceeds of corruption in Papua New Guinea, as police in both countries probe the role of Australian lawyers there.
"We take very seriously allegations that the proceeds of crime in PNG and the proceeds of corruption can be laundered in Australia," she said, noting that intelligence agencies and the anti-money laundering agency, Austrac, were closely involved in monitoring the problem. "We are working closely with PNG to ensure Australia is not a safe haven for the proceeds of corruption," she said.
Rather than pubically supporting the announcement by Bishop several days later on 31st July 2015 O’Neill instead announced a ban on all foreign advisers working for his government, claiming they make local staff lazy, and they could be spying.
He said "So our government has taken a deliberate decision that by the end of the year, all foreign consultants and advisers, their contracts will end by 31st of December." Mr O'Neill then took aim at one particular group of advisers — the 70-odd Australian Federal Police officers working to improve PNG's law and order situation. "If we need to recruit experts, it will be recruited by PNG government as an employee of the PNG government," he said.
Recently Prime Minister has reacted to reports by former Australian and PNG Treasury official and John Garnaut, Fairfax journalist raising serious concerns about the PNG economy by stating he has asked them to leave.
An important point is that while the Prime Minister believes he may possess the powers to issue a directive to deport or ban anyone who is critical of his leadership, directives that directly interfere with the administration of justice, matters currently before the Court may be seen to be contemptuous. It is also a criminal offence to defeat justice. It would be disappointing to see another head of the public service department foolishly mislead by Politicians to only end up being convicted of Contempt of Court.
To conclude one can only assume desperate times calls for disparate measures.