This is the most unusual feature of Papua New Guinea’s human rights jurisdiction. In no other civil proceeding may the National Court begin a case without an applicant.
Section 57(1)
A right or freedom referred to in Division III.3 shall be protected by, and is enforceable in the Supreme Court or the National Court — either on its own initiative or on application by any person who has an interest in its protection and enforcement.
Order 23 Rule 8 of the National Court Rules 1983 supplies the procedure for what the Constitution already permits — and Rule 8(3) is careful to say that nothing in these Rules derogates from the power and duty of the National Court under Section 57(1).
Order 23 Rule 8
(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 Court does so —
(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.
The file reference marks these proceedings out. There is no plaintiff; there is a respondent, and only if any — the Rule contemplates that the Court may act before any respondent is identified.
Compare the other references in Rule 7: WS (HR) for a writ, OS (HR) for an originating summons, HRA for a Human Rights Enforcement Application in Form 124, and HRC for a Complaint of Unlawful or Unreasonable Detention in Form 125.
Rule 8(3) and (4)
Nothing in these Rules derogates from the power and duty of the National Court under section 57(1) to, on its own initiative, enforce the rights and freedoms referred to in Division III.3 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.
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.
Rule 8(3) is a remarkable provision. It permits the Court to act informally — without originating process, without a party, without the usual formalities — where a Basic Right requires immediate protection.
Rule 8(4) supplies the discipline: the formal process must follow as soon as the circumstances permit, and in any event within seven days, and must be served on the respondents. So informality is a bridge, not a destination.
Note the phrase in Rule 8(3): the power and duty. The Constitution does not merely permit the Court to act; the Rule characterises it as a duty.
Rule 9 — Form 127
(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) 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) The Judge shall decide what further action, if any, is necessary — including whether to open a HROI file 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.
This is the practical gateway. A person need not be affected, need not have standing, and need not commence proceedings. They deliver a Form 127 to the Registrar, who must pass it to a Judge within one day.
The categories are wide: alleged or suspected breach or imminent breach or threatened breach. A threatened breach is enough.
And the Judge’s response is not limited to opening a file. Under sub-rule (3) the Judge may direct the Public Solicitor under Constitution section 177(2)(b) to provide legal aid, advice and assistance — which addresses the practical reason many breaches never reach a court. See whether you need a lawyer.
The reason for the power
The people whose Basic Rights are most often at risk — detainees, remandees, people in remote areas, people without means — are the least able to commence proceedings. A jurisdiction that waited for an application would not reach them.
Rule 8 addresses that directly. A Judge who observes a fact — on a prison visit, in the course of a criminal list, from what is said in another case — may act. So may a Judge informed by the Registrar or Sheriff or one of their officers.
It fits the pattern of the Rules as a whole: free filing for a Human Rights Enforcement Application or a Complaint of Unlawful or Unreasonable Detention under Rule 7(5); a discretion in the Registrar to waive filing fees for other human rights proceedings where payment might be a hardship; and the wide standing provisions of Rule 6.
An HROI proceeding goes onto the Human Rights List maintained by the Registrar under Rule 3(1). Under Rule 11, once a proceeding is on the List, any application or motion shall be set for hearing before the Judge dealing with matters on the Human Rights List, and the matter is set down for trial in accordance with the directions of the Human Rights List Judge.
The Judge 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.
Sources
- National Court Rules 1983 — O 10 r 9A; O 23 (Human Rights Rules 2010) rr 3, 5–11; Forms 124–127
- Constitution — ss 57, 58, 177, Div III.3
Before relying on anything here, read the current text of the National Court Rules 1983 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.