In what has become an all too familiar tactic, the Papua New Guinea Government recently issued travel bans against two lawyers seeking to enter its country. The order came from the Chief Migration Officer who instructed international airlines not to carry Australian barristers Greg Egan and Terence Lambert into PNG. It is not the first time such administrative orders have been made to prevent Australians entering that country.

What concerns Australian lawyers, aside from the ban itself, is the nature of the job that was to have taken Egan and Lambert to PNG. Both were briefed by Jema Lawyers to represent their clients, the Director and Deputy Director of National Fraud and Anti-corruption Directorate, in a number of matters before the court relating to a warrant of arrest issued against the current PNG Prime Minister. What is worse, the travel ban comes consequent upon a failed application to the court by the Prime Minister and other parties to prevent Mr Egan and his solicitors acting in the case. The timing of the travel ban has caused suspicion as to its real motive.

The PNG government contends that Egan and Lambert had incorrect visas, notwithstanding that both men are admitted to practice in PNG. Indeed Egan has practiced in PNG reportedly since 1988 without visa problems being raised in the past. One might also expect an administrative matter such as a visa issue could be resolved one way or the other without the necessity for travel bans. Be that as it may, the conclusion reached by both the Law Council of Australia and Australian Bar Association is that the bans are “disturbing” and suggestive of a wider problem, namely the interference by the executive government in judicial processes.

The administrative order of the Chief Migration Officer is itself now subject to judicial review, but in the meantime we are left with a distinct feeling of discomfort with the way in which the PNG government has handled the matter.

Why is it important? Firstly we need to be concerned that Australian lawyers are being prevented from practicing abroad. However, there is a broader principal at play, in particular whether the bans compromise the doctrine of the separation of powers.

The judicial arm of government – the courts – must remain assiduously independent of the executive and legislative arms of government. For an order of the Chief Migration Officer to directly impact the ability of parties to carry on litigation by removing from them their choice of counsel is a serious matter. It is not an exaggeration to suggest it compromises the rule of law itself.

Access to an independent judiciary is at the heart of all successful democracies, and has the added benefit of encouraging foreign and domestic investment.

As Patrick O’Sullivan of the Australian Bar Association said: “Every citizen of PNG is entitled to legal representation and in particular, is entitled to choose who represents his or her interests.” In urging the PNG government to “see what is at stake”, O’Sullivan went on to say: “Interfering with the impartial administration of justice will only serve to jeopardise the rule of law in PNG …”

Access to an independent judiciary is at the heart of all successful democracies, and has the added benefit of encouraging foreign and domestic investment. Any investor in a country will want to know that their investment is protected by a robust and independent judicial system. To have less can act as a deterrent to investors which is very bad news, particularly when you are a developing economy. Decisions such as that of the Chief Migration Officer therefore have the potential to cause a direct and deleterious economic impact on every citizen of PNG, quite aside from the abiding concern that if the executive government of that state is inclined to act in this way against Australian lawyers, how must it treat its own people?

Australia must avoid appearing to be “big brother” in the Asia Pacific. Conversely it is the obligation of lawyers and their associations, if not Australian authorities, to speak up when, on the face of it, there is an apparent threat to the rule of law and the separation of powers in our region. All Australians should care about the stability of our near neighbours, including the rights of the citizens of PNG.

The judicial proceedings concerning the PNG Prime Minister are far from over. While road blocks such as this travel ban may impede things, one hopes that for the sake of the people of PNG that justice prevails. If the PNG Prime Minister has nothing to answer for so be it, but let the courts decide that. If it is the opposite, so be that as well. The point here is not the result or the outcome, but rather the guarantee of a fair, independent and respected judicial process that has the confidence of the citizens of PNG and its neighbours. At the moment the actions of the PNG government would suggest the contrary, and that is of great concern.

As the President Law Society of PNG Peter Kuman said: “All lawyers in this country must be able to practice law in this country without fear or favour.”

His statement perfectly sums up the obligations of the PNG government on this issue. To that end I add my voice to those calling on the PNG government to permit Egan and Lambert to travel to that country and go about their legitimate business. To do less would be to let down both the lawyers and citizens of our nearest neighbour, and to fail to insist on the maintaining of the rule of law in our region.

UPDATE: On the evening this article was published, PNG lifted the travel ban.

Morry Bailes is the managing partner at Tindall Gask Bentley Lawyers, Member of the Executive of the Law Council of Australia and immediate past President of the Law Society of SA. The opinions expressed in this column are his own.

His column appears every second Thursday.