Most of this series concerns paperwork: deeds, prospectuses, licences. Sections 60 to 62 of the Securities Commission Act 2015 concern doors, passports and police cells.
Surrender of travel documents
“Notwithstanding any law to the contrary”, if an Investigating Officer has reason to believe that a person who is the subject of an investigation for a suspected offence under a securities law “is likely to leave this jurisdiction”, the officer may, with the approval of the Commission, by written notice require the person to surrender his passport, work permit, resident visa or any other travel document.
The notice must be complied with “forthwith”. A person who does not comply may be arrested and taken before a Magistrate, who must, unless the person hands over the document or satisfies the Magistrate that he has none, commit him to prison by warrant until he complies or until 14 days have passed, whichever is earlier (section 60(3) and (4)). Section 56 separately lets an officer seize travel documents found during a search or produced under a notice. Until 2023, section 60(5) barred any legal proceedings against the State, Commission officers or anyone else for things lawfully done under the section; the Securities Commission (Amendment) Act 2023 repealed that subsection, so the general good-faith immunity in section 115 is now the only shield.
Search warrants
A Magistrate may issue a warrant authorising a member of the Royal Papua New Guinea Constabulary, together with the Investigating Officer, to enter and search premises, break open anything in them and take possession of or secure the books described. The warrant must specify the premises and books, state whether entry may be made at any time or only during specified hours, and cease to have effect on a day not more than 14 days after issue (section 61(2)). The occupier must give all reasonable facilities and assistance; intentionally or recklessly failing to do so, or obstructing anyone executing the warrant or exercising a Part V power, carries a fine of up to K10 million or ten years’ imprisonment, or both (section 95).
Forceful entry and detention without a warrant
An Investigating Officer, or any person authorised in writing by the Commission, may “forcefully enter a premise without a search warrant” and seize documents, computers and electronic devices the Commission may need, but only where (a) there is a real possibility the person would conceal the information before a warrant could be obtained, (b) the person is likely to leave Papua New Guinea with the material, or (c) the person has not been complying with lawful directives to produce it (section 62(1) and (2)). Section 62(3) to (5) go further still: with police assistance the officer may, without a warrant, detain in a police lock-up a person whom the Commission thinks would conceal material; the Commission may hold that person “without bail and without laying of any charges for not more than 48 hours”; and while the person is detained the officer may enter the premises and seize material without a warrant. Section 108 requires an officer who arrests under section 60(3) to hand the person to the nearest police officer or station without unnecessary delay, and section 109 says a Magistrate authorising detention of a person arrested under section 62 must direct that the detention be in police custody.
Section 56(1) adds a further puzzle: it already lets an officer enter “any place or building” and inspect and seize without a warrant whenever investigating, without any of the section 62 conditions. The relationship between sections 56, 61 and 62 is not explained in the Act, and a court asked to rule on an entry would have to reconcile them.
The constitutional tension
Section 42 of the Constitution guarantees liberty of the person: deprivation of liberty is permitted only in listed cases, including on reasonable suspicion of an offence, and a person arrested or detained must be told the reasons, be allowed a lawyer and be brought before a court without delay. Section 44 guarantees freedom from arbitrary search of the person or property and entry of premises, except under a law that complies with section 38. Section 38 allows a law to regulate these qualified rights only to the extent reasonably justifiable in a democratic society, and only if the law expressly declares its purpose. Section 1(2) of the Securities Commission Act makes that declaration, naming sections 42 and 44 among the rights it regulates “for the purpose of giving effect to the public interest in public welfare”.
The declaration brings the Act within section 38, but it does not settle whether 48 hours’ detention without charge or judicial oversight, on the Commission’s own opinion that a person “would conceal” documents, is reasonably justifiable. No reported decision found for this series has tested sections 60 to 62 against the Constitution. Section 60, which routes the arrested person to a Magistrate within the ordinary criminal process, is more clearly defensible than section 62(3) and (4), which does not.
Ask whether they are acting under a warrant (section 61), under section 62 and if so on which of the three grounds, or under section 56. Ask for the written authorisation of anyone who is not an Investigating Officer. Do not obstruct: the penalties under section 95 are severe. Record names, times and what is taken, insist on the section 57 list, and contact a lawyer at once. A detention beyond the statutory limits can be challenged in the National Court under section 57 of the Constitution.
Sources
- Securities Commission Act 2015 — ss 1(2), 56, 57, 60 (s 60(5) repealed 2023), 61, 62, 95, 108, 109, 115, as amended by the Securities Commission (Amendment) Act 2023
- Constitution of the Independent State of Papua New Guinea — ss 38, 42, 44, 57
Before relying on anything here, read the current text of the Capital Market Act 2015 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.