Judicial limits on the Ombudsman Commission of PNG’s Powers: An analysis of Masiu & Ors v Ombudsman Commission

By Andrew Kidu and Isaiah Iovatt

Key takeaways:

• Section 27(4) of the Constitution does not permit the Ombudsman Commission to halt regulatory processes in the absence of an identified and evidenced Leadership Code breach.

• Constitutional directions issued without a proper legal and factual foundation will be set aside as jurisdictional error.

• The decision reinforces clear limits on constitutional oversight powers, with direct consequences for regulatory certainty and governance for investors and general commercial activity.

• During the proceedings, Starlink was prevented from providing satellite internet services in PNG.

• Following the resolution of the proceedings, the National Information and Communications Technology Authority (NICTA) has now issued operator licences to Starlink, enabling lawful service provision in Papua New Guinea.

The National Court’s decision in Hon Masiu & Ors v Ombudsman Commission OS (JR) No 66 of 2024 (Decision), clarifies the limits of the Ombudsman Commission’s coercive powers under section 27(4) of the Papua New Guinea (PNG) Constitution.  While reaffirming the central role of the Ombudsman Commission in providing good governance, the Decision sits at the intersection of constitutional law, administrative regulation, and technological development  related to the expansion of satellite internet services in PNG.

Background

The proceedings arose from a decision by the Ombudsman Commission to intervene in the licensing process being undertaken by the National Information and Communications Technology Authority (NICTA) in respect of Starlink Internet Services (PNG) Limited (Starlink).

Under the National Information and Communications Technology Act 2009 (Act), NICTA is responsible for granting network operator licences which allow the provision of ICT services in PNG (operator licence), including satellite internet services. In August 2023, NICTA commenced a public consultation process on the regulatory framework for low‑earth orbit (LEO) satellite service providers.

Starlink lodged applications for the relevant operator licences in September 2023. Following assessment, NICTA resolved in December 2023 to grant Starlink an ‘in principle licence’, subject to the finalisation of terms and conditions. That decision was publicly announced by the relevant Minister in January 2024.

In January 2024, the Ombudsman Commission requested information from the Minister and NICTA regarding the licensing process and compliance with consultation requirements. The requested information was provided.

In February 2024, the Ombudsman Commission issued a direction under section 27(4) of the Constitution, requiring that no licence be granted to Starlink without its clearance and any licence issued be suspended or revoked pending further consultation (Direction). The stated purpose of the Direction was to enable investigation into the licensing and consultation process. Despite subsequent requests and meetings seeking the withdrawal of the Direction, the Ombudsman Commission declined to withdraw it.

Consequently, the Minister and NICTA commenced judicial review proceedings to challenge the validity of the Direction.

Issues Before the Court

The central issue to be determined was whether the Ombudsman Commission had properly exercised its powers under section 27(4), which permits the issuance of directions to prevent breaches of the Leadership Code. That overarching issue raised three related questions:

1. whether the direction identified a clear and imminent risk of leadership misconduct;

2. whether there was a sufficient factual and legal basis to justify the use of a coercive constitutional power; and

3. whether less intrusive administrative or regulatory mechanisms were available.

The Decision

The Court upheld the application for judicial review. It held that the Ombudsman Commission had not lawfully exercised its powers under section 27(4) of the Constitution. The Direction was declared ultra vires and unlawful, and an order was made quashing it.

In doing so, the Court confirmed that section 27(4) confers a coercive constitutional power that may only be exercised in strictly confined circumstances, and that the preconditions for its exercise had not been met on the facts of the case.

Precedential Significance of the Decision

The Decision is significant because it contains one of the clearest statements to date on the constitutional limits of the Ombudsman Commission’s power to issue directions under section 27(4) of the Constitution.

First, the Decision confirms that section 27(4) is not a general supervisory or precautionary power. It is a narrow and coercive power to be exercised in defined circumstances. Any valid direction must be based on  identifiable and particularised concerns of a Leadership Code breach. In doing so, the Ombudsman Commission must demonstrate:

1. a clearly articulated allegation of misconduct;

2. a rational evidentiary basis linking the facts to a likely breach; and

3. a necessity for invoking coercive constitutional intervention.

This formulation is likely to  guide the lawful use of section 27(4) in future cases.

Second, the Decision expressly rejects, the use of section 27(4) to “preserve the status quo” while investigations are undertaken. By describing this approach as misconceived, the Court confines section 27(4) to reactive rather than speculative intervention.

Third, the Decision confirms that directions that do not meet those requirements are open to challenge on ordinary administrative law grounds. The Court’s characterisation of the Direction as both an “excess of jurisdiction” and “arbitrary”  makes clear that such directions are constitutionally invalid, and not merely procedurally flawed.

Fourth, the decision draws a doctrinal boundary between Leadership Code enforcement and administrative regulation. Matters relating to consultation, timing or licensing decisions do not, without more, engage section 27(4). This limits the Ombudsman Commission’s ability to intervene in ongoing regulatory processes in the absence of identified leadership misconduct.

Finally, the case has broader implications for the exercise of constitutional oversight powers. It reinforces that such powers must be exercised with restraint and on a sound legal footing, particularly where their use has the potential to disrupt significant governmental or commercial activity.

Implications for Starlink and Digital Connectivity in PNG

The Decision has direct implications for the rollout of Starlink in PNG. NICTA’s licensing process for Starlink was at an advanced stage when it was halted by the Direction resulting in the regulatory impasse and Starlink being prohibited from continuing operations in PNG at that time.

Subsequently, following the resolution of the legal challenge and restoration of regulatory certainty, the National Information and Communications Technology Authority (NICTA) has now issued operator licences to Starlink, enabling its authorised operation in Papua New Guinea.

This is not merely a commercial issue. Starlink’s low-earth orbit satellite technology has been particularly significant in PNG, where geography makes traditional infrastructure difficult. It is expected to provide (upon rollout and activation)  high-speed, low-latency internet access in remote areas where conventional networks are limited or unavailable, supporting services such as healthcare, education, logistics, and small business operations. The earlier disruption to Starlink’s rollout had tangible social and economic impacts, especially in rural communities that rely on satellite connectivity.

The Decision removes a legal barrier that had stalled the licensing process. While it did not itself grant a licence, it confirms that regulatory decisions must proceed through proper statutory and regulatory channels rather than being halted by unsupported constitutional intervention. The subsequent issuance of licences by NICTA demonstrates the practical restoration of that regulatory pathway.

Conclusion

Masiu & Ors v Ombudsman Commission confirms that the Ombudsman Commission’s powers under section 27(4) are narrowly confined and must be exercised with legality, specificity and restraint. By clarifying the limits of constitutional intervention in regulatory processes, the Decision has enabled the resumption of lawful regulatory decision-making. The subsequent licensing of Starlink by NICTA reinforces the importance of maintaining clear boundaries between constitutional oversight and administrative functions, with practical consequences for governance, investment certainty, and digital development in Papua New Guinea.