How Do I Enforce a Basic Right?

Section 57 of the Constitution is the machinery that makes the Basic Rights real. It is drafted more generously than almost any comparable provision, and it is protected by a three-quarters absolute majority requirement under section 17(3).

Section 57(1) — who can bring the case

A right or freedom in Division 3 shall be protected by, and is enforceable in, the Supreme Court or the National Court — or any other court prescribed for the purpose by an Act —

• on the court’s own initiative; or
• on application by any person who has an interest in its protection and enforcement; or
• where a person is, in the opinion of the court, unable fully and freely to exercise their rights under the section, by a person acting on their behalf — whether or not by their authority.

Section 57(2) — standing is wide

For the purposes of the section, the following have an interest in the protection and enforcement of the Basic Rights:

• (a) the Law Officers of Papua New Guinea;
• (b) any other persons prescribed by an Act; and
• (c) any other persons with an interest — whether personal or not — in the maintenance of the principles commonly known as the Rule of Law, such that in the court’s opinion they ought to be allowed to appear and be heard.

And the subsection expressly does not limit who else may have such an interest. Paragraph (c) is a public-interest standing provision in terms: a person with no personal stake at all may be heard if the court considers they should be.

Section 57(3) — the orders available

A court with jurisdiction may make all such orders and declarations as are necessary or appropriate for the purposes of the section — and may make an order or declaration in relation to a statute at any time after it is made, whether or not it is in force.

That last clause is unusual and powerful: an uncommenced statute can be dealt with before it ever takes effect.

In practice, orders have included declarations that a right was infringed, injunctions and restraining orders, orders for release from custody, orders for the return of property, directions to public authorities, and damages under section 58.

Section 57(4) — any body can pause

Any court, tribunal or authority may — on its own initiative or at the request of a person referred to in subsection (1) — adjourn, or otherwise delay a decision in, any proceedings before it so that a question concerning the effect or application of Division 3 can be determined under subsection (1).

Section 57(5) — relief before the breach

The second limb is the more striking. A person who is not doing something — publishing, assembling, travelling — because they reasonably fear their rights will be infringed if they do, can come to court on that basis alone.

Section 57(6)

The jurisdiction and powers of the courts under section 57 are in addition to, and not in derogation of, their jurisdiction and powers under any other provision of the Constitution — including sections 22, 23 and 155(4).

Section 58 — compensation

Section 58 is in addition to, and not in derogation of, section 57. A person whose Division 3 rights are infringed — including an infringement caused by derogation of the restrictions in Part X.5 on internment — is entitled to reasonable damages and, if the court thinks it proper, exemplary damages.

Damages may be awarded:

• (3) against any person who committed, or was responsible for, the infringement; and
• (4) where the infringement was committed by a governmental body, against that person, or against the governmental body to which they were responsible, or against both — in which case the court may apportion the damages between them.

How to start a section 57 proceeding

1. Identify the right by section number, and the act or omission that infringed it.
2. Record the facts — dates, times, names, ranks, witnesses, documents, injuries, photographs.
3. Go to the National Court. Registry staff cannot advise you but will tell you the correct form, the fee and the filing requirements.
4. If in custody or unable to act, have someone apply on your behalf — section 57(1) does not require your authority.
5. If detention is the issue, use section 42(5) as well: a complaint to the National Court or a Judge triggers a duty to inquire and to order you brought before the court.
6. Get advice. Start with the Office of the Public Solicitor if cost is an obstacle.