Expulsion disputes have produced more litigation over clubs and churches than any other question, in Papua New Guinea as elsewhere. The 2023 Act codifies the requirement of natural justice that the courts had applied under the general law.
“No member of an incorporated association may be expelled by the committee except pursuant to a procedure which is fair and reasonable and is carried out in good faith.” A procedure is fair and reasonable when (a) not less than 15 days’ prior written notice of the proposed expulsion or suspension, together with a statement of the reason, is provided to the member; and (b) the member is given the opportunity to be heard by the committee, orally or in writing, not less than five days before the effective date.
The elements of a fair procedure
Written notice. The member must be told, in writing, that expulsion or suspension is proposed, and why. A notice that gives no reasons, or that gives one reason and expels for another, does not comply. Fifteen days. The notice must precede the decision by at least 15 days, so that the member can prepare. A hearing. The member must be able to put his or her case to the committee, in person or in writing, and that opportunity must come at least five days before the expulsion takes effect, so that the committee can consider it before deciding. Good faith. The procedure must be genuinely used to decide, not to dress up a decision already made; a committee that has announced the expulsion before the hearing has not acted in good faith. These reflect the two rules of natural justice, notice of the case and a chance to answer it, that the National Court has long required of domestic tribunals under section 59 of the Constitution.
The rules must also be followed
Section 71 sets a floor. The rules of the association may set out grounds for expulsion, a disciplinary committee, an appeal to the general meeting, or longer notice, and those provisions bind the association as a contract under section 20(6). A committee that satisfies section 71 but ignores its own rules has still acted unlawfully, and the member may seek a compliance order under section 52. Conversely, a rule that allows expulsion “at the committee’s absolute discretion without notice” is of no effect to the extent it contravenes section 71 (section 20(7)), except in the two cases below.
The exceptions: member benefit associations and churches
Section 71(3) provides that “the rules of a member benefit association or of a church (or council of churches) may provide for the expulsion of a member using a different procedure”. A social club may therefore adopt a shorter or different process, and a church may apply its own ecclesiastical discipline, provided the rules say so. Even then, the general requirement of good faith in section 71(1) is not disapplied, and the courts will still expect the rules’ own procedure to be followed honestly. A public benefit association that is not a church cannot contract out of the 15-day procedure.
Suspension and loss of facilities
Section 71(4) provides that “a temporary suspension or other interruption of a member’s right to use amenities, services or other facilities” is not an expulsion. A club that bars a member from the bar for a month pending an inquiry, or a sports body that stands down a player for a fixture, need not go through the section 71 procedure for that step. But the section’s procedural requirements in subsection (2) speak of “expulsion or suspension”, so a formal suspension from membership rights as a disciplinary penalty does attract the notice and hearing requirements. The distinction is between interrupting facilities and suspending membership.
Challenging an expulsion
Section 71(5) provides that “any court proceeding challenging an expulsion or temporary suspension must be commenced by a member within one year after the effective date”. The proceeding is ordinarily in the National Court, seeking a declaration that the expulsion was void, an order under section 52 that the committee comply with the rules, an injunction under section 50, and rectification of the member register under section 88 (which is a District Court power) with compensation for loss. The court will ask whether the statutory procedure and the rules were followed and whether the committee acted in good faith; it will not usually substitute its own view on whether the member deserved expulsion.
The member register
An expelled member’s name comes off the member register, but section 87(1) requires the register to record persons who have been members within the last five years, so the entry is not deleted but marked. See the member register.
Serve a written notice stating the proposed action, the reasons and the date and place of the hearing, at least 15 days ahead; allow the member to attend with a representative or send a written response; hold the hearing at least five days before the proposed effective date; decide afterwards on the evidence; give written reasons; and record the whole process in the minutes. Then give notice of any right of appeal under the rules.
Sources
- Associations Incorporation Act 2023 — ss 20(6)–(7), 50, 52, 71, 87, 88
- Constitution — s 59 (principles of natural justice)
Before relying on anything here, read the current text of the Associations Incorporation Act 2023 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.