In a decision handed down yesterday, Justice Purdon-Sully declared a 28 February 2024 Direction from the Ombudsman Commission “ultra vires and consequently null and void.” The Court issued an order quashing the Direction and ordered the Commission to pay the plaintiffs’ legal costs.
The judicial review was filed by the Minister for Information and Communications Technology, Timothy Masiu, alongside NICTA CEO Kila Gulo-Vui, Board Chairman Noel Mobiha, and Director for Licensing and Enforcement Panny Yokope. The Ombudsman Commission was named as the defendant.
The Core of the Dispute
At the center of the case was a four-page Direction issued under Section 27(4) of the Constitution. This provision allows the Ombudsman Commission to issue orders to prevent breaches of the Leadership Code. The Direction instructed the plaintiffs to:
- Stop authorising or granting any Network Operator Licence to Starlink Internet Services (PNG) Limited.
- Refrain from issuing a licence without prior clearance from the Ombudsman Commission.
- Revoke any licence already issued to Starlink pending “further and wider public consultation.”
The Commission warned that failure to comply would amount to misconduct in office, a charge that can lead to dismissal.
Timeline of Events
The licensing process began in August 2023, when NICTA opened public consultations on Low Earth Orbit (LEO) satellite licensing.
- 1 September 2023: Starlink lodged its application for an Individual Operator Licence.
- 29 December 2023: A second consultation on licensing conditions concluded.
- 18 December 2023: The NICTA Board gave in-principle approval for Starlink’s licences, subject to final terms.
- 2 January 2024: Minister Masiu made the decision public.
The Ombudsman Commission claimed it received complaints that the licence was issued while consultations were incomplete and that stakeholder submissions had been ignored. Following an exchange of letters, the Commission issued the Section 27(4) Direction on 28 February 2024.
NICTA requested the Direction be lifted in April and June 2024. When it remained in place, the plaintiffs filed for judicial review on 5 August 2024, with leave granted the following month.
The Court’s Findings
Justice Purdon-Sully stated the central issue was whether the Ombudsman Commission had the jurisdiction to issue such a Direction.
While Section 27(4) empowers the Ombudsman to uphold the Leadership Code, the Court emphacized that Supreme Court precedents clarify this power is “quasi-judicial” and must be exercised “sparingly and only in very limited and carefully considered cases.”
The Court found the Direction failed to meet several “key and essential factors”:
- No evidence of Leadership Code breach: The material showed “technical process concerns” regarding NICTA’s consultation, rather than misconduct by leaders.
- Insufficient factual foundation: The Direction relied on “diffuse regulatory concerns” instead of facts showing corrupt or improper conduct.
- Alternative options: The Ombudsman could have used its general investigative powers under Section 219 of the Constitution rather than a “coercive direction” that froze NICTA’s statutory functions.
“The Direction discloses no articulation of how the Plaintiffs engaged with s27(1)(a)-(d),” the judgment stated.
“The materials do not link any leader to improper gain or conflict.”
Implications of the Ruling
The Court further held that suspending NICTA’s licensing role exposed the State to “unnecessary risks or liabilities,” including potential damages claims by Starlink or third parties.
“It is not sufficient for the Defendant to base the use of the power on the strength of a purported misleading ministerial media statement, an incomplete consultation process and what may or may not be revealed during an investigation,” Justice Purdon-Sully wrote. He ultimately described the Direction as “an arbitrary and unconstitutional exercise of power” and “an excess of jurisdiction.”
The ruling removes the legal barriers preventing NICTA from continuing its assessment of Starlink’s licence. The Ombudsman Commission maintains the right to appeal the decision.