Order 23 of the National Court Rules 1983 reproduces the Human Rights Rules 2010, made on 7 December 2010 and in force from 1 July 2011. They are expressed to be in addition to and form part of the procedures for instituting proceedings contained in the National Court Rules.
Rule 2
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.
Constitution 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.
Section 58 provides for compensation, and section 23 for sanctions where a Constitutional Law imposes a prohibition, restriction or duty without providing a penalty.
The Rules do not create the jurisdiction. They provide a procedure designed to make it accessible.
Rule 7
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 is called the plaintiff, and the person against whom proceedings are commenced the defendant.
| Mode | Reference | When it suits |
|---|---|---|
| Writ of summons | WS (HR) | Where damages are claimed and facts are substantially in dispute — and note Order 4 Rule 2 requires a writ for tort claims |
| Originating summons | OS (HR) | Where the question is essentially one of law or there is unlikely to be a substantial dispute of fact |
| Human Rights Enforcement Application, Form 124 | HRA | The simplest route — designed for a person seeking enforcement without the apparatus of a civil action |
The Human Rights Enforcement Application exists so that enforcement of a Basic Right does not depend on being able to draft a writ. It is the route contemplated for a detainee, or for a person without a lawyer.
Where damages are the object, however, think carefully. A claim in tort must ordinarily be commenced by writ under Order 4 Rule 2(1)(a), and where the State is the defendant the section 5 notice under the Claims By and Against the State Act 1996 is engaged — section 2(2) of that Act applies it to applications under Constitution sections 57 and 58. See compensation.
Rule 3
(1) There shall be a Human Rights List maintained by the Registrar, containing 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 List.
(3) The Registrar shall appoint an officer to be the senior officer in charge of registry matters concerning the Human Rights List, and such other staff as are necessary.
Human rights matters are managed separately from ordinary civil litigation, with their own List, their own Judge Administrator and their own registry officer. See the Human Rights Track.
Rule 1 defines “Listing Judge” as the Judge conducting listing of cases pursuant to the Listings Rules, and “Listings Rules” as Order 10 Rule 9A of the National Court Rules — so the two systems are expressly connected.
Rule 5
Rule 5 places on the Human Rights List proceedings that are, in substance, irrespective of whether expressly so described, for enforcement of the Basic Rights; proceedings under section 183 of the Bougainville Constitution; proceedings under section 23 for sanctions; complaints under section 42(5) that a person is unlawfully or unreasonably detained; claims 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 a Basic Right; proceedings whose issues overlap with those in enforcement proceedings; proceedings concerning Part X emergency powers; applications for habeas corpus under Order 17; proceedings for enforcement of the Correctional Service Act and Regulation concerning treatment of detainees and calculation of periods of detention; and applications under section 5(2)(c)(iii) of the Claims By and Against the State Act to allow a further period for notice, where the claim relates to enforcement of a Division III.3 right.
Those words matter. A proceeding does not escape the Human Rights List because it was drafted as an ordinary claim. What counts is its substance.
Paragraph (e) is the provision most often engaged in practice: a claim for any tort allegedly committed by a member of a disciplined force — police, correctional service, defence force — where the cause of action might reasonably be regarded as a breach of one or more of the Basic Rights. See human rights cases against police.
Sources
- National Court Rules 1983 — O 4 r 2; O 10 r 9A; O 17; O 23 (Human Rights Rules 2010) rr 1–7; Form 124
- Constitution — ss 23, 57, 58, 184, Div III.3, Pt X
- Claims By and Against the State Act 1996 — ss 2, 5
- National Court Act (Chapter 38) — s 8
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.