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Human Rights Rules 2010

NATIONAL COURT
OF JUSTICE

HUMAN
RIGHTS
RULES

JULY 2011
THE INDEPENDENT STATE OF PAPUA NEW GUINEA

HUMAN RIGHTS RULES 2010

Made pursuant to Section 184 (rules of court) of the Constitution and Section 8 (rules of court of the National Court) of the National Court Act (Chapter No 38) and all other powers enabling, the following Rules, prescribing the practice and procedure of the National Court of Justice relating to the conduct of human rights proceedings and related matters, shall come into force on a date to be determined by the Chief Justice. [Editorial note: the date determined by the Chief Justice is 1 July 2011.]

These Rules are in addition to and form part of the procedures for instituting proceedings contained in the National Court Rules.

Dated this 7^th day of December 2010

Chief Justice Sir Salamo Injia Kt
Deputy Chief Justice Gibbs Salika CSM OBE
Justice Bernard Sakora CBE CSM
Justice Mark Sevua CBE
Justice Nicholas Kirriwom
Justice Les Gavara-Nanu OBE CSM
Justice Ambeng Kandakasi
Justice Ellenas Batari MBE
Justice Salatiel Lenalia
Justice Panuel Mogish
Justice Catherine Davani
Justice David Cannings
Justice George Manuhu
Justice Kingsley Allan David
Justice Sao Gabi
Justice Derek Hartshorn ML
Justice Joseph Yagi
Justice Collin Makail
Justice Ere Kariko MBE
Justice Graham Ellis
Justice Don Sawong MBE
Justice John Kawi

HUMAN RIGHTS RULES 2010
OUTLINE

Part 8 – Human Rights Jurisdiction

Order 23 – Human Rights

1 Interpretation

2 Purpose

3 Administration

4 Application

5 Human rights proceedings

6 Standing to bring or appear in proceedings

7 Commencement of proceedings by a party

8 Commencement of proceedings by the court

9 Statement of alleged or suspected breach of human rights

10. Request to place a proceeding on or remove a proceeding from Human Rights List
    

11 Applications, motions and directions after listing

12 Dispensation

INDEX OF ORDER 23 FORMS

124 – Human Rights Enforcement Application Form (O 23, R 7(1)(c))
125 – Complaint of Unlawful or Unreasonable Detention under Section 42(5) of the Constitution (O23, R 7(4))
126 – Originating Process for Own Initiative Matter (O23, R 8(2))
127 – Statement of Alleged or Suspected Breach of Human Rights (O23, R 9(1))
128 – Request for Matter to be Placed on Human Rights Track (O 23, R 10(1))
129 – Listing Statement (O23, R 10(2))
The National Court Rules are amended by inserting the following:

Part 8 – Human Rights Jurisdiction

Order 23 – Human Rights

1 Interpretation

In this Part, unless the contrary intention appears –

“Basic Rights” means the rights and freedoms described in Rule 5;
“Bougainville Constitution” means the Constitution of the Autonomous Region of Bougainville;
“Constitutional Laws” has the same meaning as in the Constitution;
“Human Rights” means the rights and freedoms described in Rule 5;
“Listing Judge” means the Judge conducting listing of cases pursuant to the Listings Rules;
“Listings Rules” refers to Order 10, Rule 9A of the National Court Rules.

2. Purpose
   

The purpose of these Rules is to facilitate a quick and just resolution of court proceedings instituted under Sections 57 and 58 of the Constitution for enforcement of the Basic Rights (also known as “Human Rights”) and for enforcement under Section 23 of the Constitution of prohibitions, restrictions or duties imposed by the Constitutional Laws and of related matters.

3 Administration

(1) There shall be a Human Rights List maintained by the Registrar, which shall contain the reference numbers, names and status of the proceedings described in Rule 5.

(2) The Chief Justice may appoint a Judge to be Judge Administrator of the Human Rights Track and may from time to time appoint any Judge to deal with matters on the Human Rights List.

(3) The Registrar shall appoint an officer to be the senior officer in charge of registry matters concerning the Human Rights List and shall appoint such other staff as are necessary to ensure the efficient and orderly running of the Human Rights List.

4 Application

These Rules are designed to facilitate the running of the Human Rights List.

5 Human rights proceedings

The following proceedings shall be placed on the Human Rights List and shall be dealt with in accordance with these Rules:

(a) proceedings that are, in substance, irrespective of whether expressly so described, for enforcement under Sections 57 (enforcement of guaranteed rights and freedoms) or 58 (compensation) of the Constitution of any of the Basic Rights, viz:

(i) right to freedom (s 32);

(ii) right to life (s 35);

(iii) freedom from inhuman treatment (s 36);

(iv) protection of the law (s 37);

(v) proscribed acts (s 41);

(vi) liberty of the person (s 42);

(vii) freedom from forced labour (s 43);

(viii) freedom from arbitrary search and entry (s 44);

(ix) freedom of conscience, thought and religion (s 45);

(x) freedom of expression (s 46);

(xi) freedom of assembly and association (s 47);

(xii) freedom of employment (s 48);

(xiii) right to privacy (s 49);

(xiv) right to vote and stand for public office (s 50);

(xv) right to freedom of information (s 51);

(xvi) right to freedom of movement (s 52);

(xvii) protection from unjust deprivation of property (s 53);

(xviii) equality of citizens (s 55); and

(b) proceedings under Section 183 of the Bougainville Constitution for enforcement of Basic Rights under that Constitution; and

(c) proceedings under Section 23 (sanctions) of the Constitution for imposition of sanctions for breach of prohibitions, restrictions or duties imposed by the Constitutional Laws in regard to human rights issues; and

(d) complaints under Section 42(5) (liberty of the person) of the Constitution that a person is unlawfully or unreasonably detained; and

(e) proceedings where a claim is made by the plaintiff for any relief or remedy for any tort allegedly committed by a member of a disciplined force, where the cause of action might reasonably be regarded as a breach of one or more of the Basic Rights; and

(f) proceedings where the issues of fact or law that are likely to arise overlap with the type of issues of fact or law that commonly arise in enforcement proceedings under Sections 57, 58 or 23 of the Constitution; and

(g) any proceedings within the jurisdiction of the National Court concerning the discharge of powers, functions, duties or responsibilities under Part X (emergency powers) of the Constitution; and

(h) applications for a writ of habeas corpus under Order 17 of the National Court Rules; and

(i) proceedings for enforcement of the provisions of the Correctional Service Act and the Correctional Service Regulation concerning treatment of detainees, calculation of periods of detention and related proceedings; and

(j) applications under Section 5(2)(c)(iii) (notice of claims against the State) of the Claims By and Against the State Act to allow a further period in which to give notice to the State of an intention to make a claim against the State, where the claim relates to enforcement of a right or freedom referred to in Division III.3 of the Constitution.

6 Standing to bring or appear in proceedings

Without derogating from Sections 57(1) and (2) of the Constitution, persons who may bring or commence or appear in a human rights proceeding include:

(a) a person whose human rights or freedoms are adversely affected by any act or omission of:

• (i) the government or a governmental body or a person exercising public power or performing public functions; or

(ii) a private person or a body corporate, including a company, and any of its officers or employees exercising private powers or performing private functions;

(b) a person acting on behalf of a person who is under a disability or is unable to fully and freely exercise their right to bring an application for enforcement of their human rights or freedoms;

(c) a person or body, whether public or private, who has an interest in the protection and enforcement of human rights and freedoms;

(d) a person representing an international body with responsibility for, or a principal function of which is, protecting human rights and freedoms under international laws and conventions such as the Universal Declaration of Human Rights and any other declarations, recommendations or decisions of the General Assembly of the United Nations concerning human rights and freedoms;

(e) any other person or body who has a sufficient interest in the protection and enforcement of human rights and freedoms, approved by the Court.

7 Commencement of proceedings by a party

(1) A human rights proceeding may be commenced by:

• (a) a Writ of Summons, in which case the file reference shall be “WS (HR)”;
• (b) an Originating Summons, in which case the file reference shall be “OS (HR)”;
• (c) filing a Human Rights Enforcement Application in Form 124, in which case the file reference shall be “HRA”.
  

(2) The person commencing proceedings under Sub-rule (1) shall be called “the plaintiff” and the person against whom proceedings are commenced shall be called “the defendant”.

(3) The originating process for enforcement of a right or freedom referred to in Division III.3 of the Constitution shall as far as is practicable identify with precision, by reference to relevant provisions of the Constitution:

(a) the right or freedom that has been allegedly infringed or of which there is a reasonable probability of infringement; and

(b) the orders, declarations or other relief that is sought.

(4) A complaint under Section 42(5) of the Constitution that a person is unlawfully or unreasonably detained may be made by filing a Complaint of Unlawful or Unreasonable Detention, in Form 125, in which case –

(a) the file reference shall be “HRC”; and

(b) the person making the complaint shall be called “the complainant” and the person(s) against whom the complaint is made shall be called “the respondent(s)”.

(5) As to filing fees:

(a) the filing of a Human Rights Enforcement Application or a Complaint of Unlawful or Unreasonable Detention shall be free of fees; and

(b) the Registrar shall for the purposes of other human rights proceedings exercise the discretion whether a filing fee should be paid by a plaintiff taking into account the nature of the proceedings and whether payment of a filing fee might be a hardship to the plaintiff.

(6) All human rights applications filed and pending determination by the National Court prior to commencement of the Human Rights Rules shall be retained under file reference MP No ... of ... (HR) and shall constitute the inaugural Human Rights List.

8 Commencement of proceedings by the court

(1) Where a Judge observes, or is informed by the Registrar or Sheriff or one of their officers, of a fact or matter which may constitute a breach of Basic Rights, the Court may commence proceedings on its own initiative.

(2) Where the National Court commences proceedings on its own initiative in accordance with Section 57 of the Constitution –

• (a) the file reference shall be “HROI” and the responding party, if any, shall be called “the respondent”; and
• (b) subject to this Rule, the originating process shall be in Form 126 or in such other terms as the Court considers appropriate.
  

(3) Nothing in these Rules derogates from the power and duty of the National Court under Section 57(1) of the Constitution to, on its own initiative, enforce the rights and freedoms referred to in Division III.3 (basic rights) of the Constitution in an informal or such other manner that the Court thinks fit, especially in urgent cases where it is not practical to comply with formal requirements for commencement of proceedings.

(4) Where the Court exercises a power under Sub-rule (3), the Court shall ensure that as soon as the circumstances permit, not being later than seven days after the exercise of such power, an originating process in Form 126 or in such other terms as the Court considers appropriate is filed and served on the respondents.

9 Statement of alleged or suspected breach of human rights

(1) Any Judge or officer of the Court or any member of the court staff or any other person, body or authority, including any member of the public, may bring any instance of alleged or suspected breach or imminent breach or threatened breach of human rights or freedoms to the attention of the Court by delivering to the Registrar a completed Statement of Alleged or Suspected Breach of Human Rights, in Form 127.

(2) After receiving a Statement of Alleged or Suspected Breach of Human Rights, the Registrar shall, within one day, forward the Statement, together with all other relevant information in the possession of the Registrar, to a Judge.

(3) After receiving a Statement and other relevant information under Sub-rule (2), the Judge shall decide what further action, if any, is necessary, including whether to open a HROI file in relation to the matter and whether to direct the Public Solicitor under Section 177(2)(b) of the Constitution to provide legal aid, advice and assistance to a person.

10. Request to place a proceeding on or remove a proceeding from Human Rights List
    

(1) When any proceedings are filed, the plaintiff may request, by filing a notice in Form 128, that the proceedings be placed on the Human Rights List and, irrespective of whether such a request is made, the Registrar or his delegate will decide, having regard to Rule 5 and other relevant considerations, whether the proceedings are appropriate to be placed on the Human Rights List or on some other list.

(2) A person aggrieved by a decision under Sub-rule (1) may apply to a Judge, by notice of motion, for review of the decision, supported by a listing statement in Form 129; and in such a case all parties to the proceedings shall be given notice of the motion and the listing statement, and shall have a right to be heard on the motion.

(3) The decision of the Court on a motion under Sub-rule (2) is final and not subject to appeal.

11 Applications, motions and directions after listing

(1) Once a proceeding is placed on the Human Rights List, any application or motion regarding that proceeding shall be set for hearing before the Judge dealing with matters on the Human Rights List.

(2) Proceedings on the Human Rights List shall be set down for trial in accordance with the directions of the Human Rights List Judge, who may make such orders or give such directions under the Listings Rules as are appropriate to ensure the just, efficient and expeditious disposal of cases.

12 Dispensation

The provisions of Division 1.2 (general) of the National Court Rules apply to these Rules.

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FORM 124 0 23, R 7(1)(c)

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

HUMAN RIGHTS ENFORCEMENT APPLICATION FORM

8. DECLARATION

I, _______________________________________________________,

declare this statement to be true and correct to the best of my knowledge and belief AND I hereby make application for the enforcement of my rights or freedom as guaranteed by the Constitution and seek orders under section 58 and any other orders the Court may see fit to make.

Dated this ____________ day of ____________ 20......

___________________________
Signature of Applicant

The application may be made by filling in this form and giving it to:

☞ a Clerk of the District Court
☞ the Assistant Registrar in your town; or
☞ a Judge of the National Court in your Province; or
☞ The Registrar of the National Court, PO Box 7018, Boroko, NCD.

Instructions to Court Clerks

When this form is handed to you, please forward it as quickly as possible to the Registrar of the National Court. Fax: 325 7732, PO Box 7018, Boroko, NCD.

FORM 125 0 23, R 7(4)

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

COMPLAINT OF UNLAWFUL OR UNREASONABLE DETENTION
UNDER SECTION 42(5) OF THE CONSTITUTION*

5. DECLARATION

I, _______________________________________________________,
declare this statement to be true and correct to the best of my knowledge and belief AND I hereby make a complaint to the National Court that I have been unlawfully or unreasonably detained.

Dated this ____________ day of ____________ 20......

___________________________
Signature of Complainant

The complaint may be made by filling in this form and giving it to:

☞ a Clerk of the District Court
☞ the Assistant Registrar in your town; or
☞ a Judge of the National Court in your Province; or
☞ The Registrar of the National Court, PO Box 7018, Boroko, NCD.

Instructions to Court Clerks

When this form is handed to you, please forward it as quickly as possible to the Registrar of the National Court. Fax: 325 7732, PO Box 7018, Boroko, NCD.

* Section 42(5) (liberty of the person) of the Constitution states:

Where complaint is made to the National Court or a Judge that a person is unlawfully or unreasonably detained—

(a) the National Court or a Judge shall inquire into the complaint and order the person concerned to be brought before it or him; and

(b) unless the Court or Judge is satisfied that the detention is lawful, and in the case of a person being detained on remand pending his trial does not constitute an unreasonable detention having regard, in particular, to its length, the Court or a Judge shall order his release either unconditionally or subject to such conditions as the Court or Judge thinks fit.
FORM 126 O 23, R 8(2)

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

HROI NO ...... 0F ......

IN THE MATTER OF ENFORCEMENT OF BASIC RIGHTS
UNDER THE CONSTITUTION
OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA,
SECTION 57
RE [here insert brief description of the proceeding]
COMMENCEMENT OF PROCEEDINGS
AND SUMMONS

THE NATIONAL COURT, [here insert brief reasons for the Court acting on its own initiative], under Section 57(1) of the Constitution, COMMENCES THESE PROCEEDINGS on its own initiative to enforce the rights and freedoms of [here insert the names or description of the persons whose rights or freedoms may have been infringed], those rights being:

• [here insert the right(s) or freedom(s) being enforced, eg freedom from inhuman treatment and punishment under Section 36(1) of the Constitution]
  

AND FOR THE PURPOSES OF THESE PROCEEDINGS THE FOLLOWING PERSONS ARE UNDER SECTION 57(3) OF THE CONSTITUTION SUMMONED TO APPEAR BEFORE THE NATIONAL COURT AT ................ ON .........................AT ............., so that the National Court may inquire into this matter and determine whether it is necessary or appropriate to make further orders or declarations for the purposes of enforcement of Basic Rights under Section 57(3) of the Constitution:

• ...........................................................
• ...........................................................
  

AND TAKE NOTICE that failure to comply with this order may be deemed to be contempt of court and expose the person who fails to comply to the sanctions of the criminal law, including arrest, fine and/or imprisonment.

DATED THIS .......... DAY OF ........................., .........

.................................

JUSTICE ....................
A JUDGE OF THE NATIONAL COURT OF JUSTICE

[AND/OR: ENDORSEMENT BY THE REGISTRAR

This matter is fixed for directions at the National Court, .............., on the ... day of ....., ......., at ...... ]
FORM 127 O 23, R 9(1)

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

STATEMENT OF ALLEGED OR SUSPECTED
BREACH OF HUMAN RIGHTS

5. DECLARATION

I, _______________________________________________________,
declare this statement to be true and correct to the best of my knowledge and belief AND I hereby bring the information to the attention of the National Court.

Dated this ____________ day of ____________ 20......

___________________________
Signature

Please give this form to:

☞ a Clerk of the District Court
☞ the Assistant Registrar in your town; or
☞ a Judge of the National Court in your Province; or
☞ the Registrar of the National Court, PO Box 7018, Boroko, NCD.

Instructions to Court Clerks

When this form is handed to you, please forward it as quickly as possible to the Registrar of the National Court. Fax: 325 7732, PO Box 7018, Boroko, NCD.

FORM 128 O 23, R 10(1)

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

REQUEST FOR PROCEEDING TO BE PLACED ON HUMAN RIGHTS LIST

TO: THE REGISTRAR

I request that the attached proceeding, in which the following persons are described as plaintiffs:
..............................................................................; and the following persons are described as defendants: ..................................... be placed on the Human Rights List.

............................................................
Signed [Plaintiff/defendant or their lawyer to sign]

Date ....................................................

FORM 129 O 23, R 10(2)

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

LISTING STATEMENT

The [Plaintiff/Defendant] makes the following statement in support of an application to have this proceeding [placed on/removed from] the Human Rights List:

1. The nature of the dispute... [set out in a summary form]:

2. The issues which are likely to arise in the proceeding are... [set out in a summary manner]:

3. The proceeding ought to be [placed on/removed from] the Human Rights List for the following reasons:

4. The attitude of other parties to this application is:

........................................................
Signed [Plaintiff or plaintiff’s lawyer shall sign]

Date ....................................................

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