Order 23 Rule 1 of the National Court Rules 1983 defines both “Basic Rights” and “Human Rights” as the rights and freedoms described in Rule 5. Rule 5 then lists them.
Rule 5(a)
| Right | Constitution |
|---|---|
| Right to freedom | s 32 |
| Right to life | s 35 |
| Freedom from inhuman treatment | s 36 |
| Protection of the law | s 37 |
| Proscribed acts | s 41 |
| Liberty of the person | s 42 |
| Freedom from forced labour | s 43 |
| Freedom from arbitrary search and entry | s 44 |
| Freedom of conscience, thought and religion | s 45 |
| Freedom of expression | s 46 |
| Freedom of assembly and association | s 47 |
| Freedom of employment | s 48 |
| Right to privacy | s 49 |
| Right to vote and stand for public office | s 50 |
| Right to freedom of information | s 51 |
| Right to freedom of movement | s 52 |
| Protection from unjust deprivation of property | s 53 |
| Equality of citizens | s 55 |
Rule 5(a) places on the Human Rights List proceedings that are, in substance, irrespective of whether expressly so described, for enforcement under Sections 57 or 58 of the Constitution of any of those rights.
Constitution section 57 is the enforcement provision; section 58 provides for compensation. Together they are the machinery by which the Division III.3 rights are made effective.
Rights that carry particular weight in practice
An act done under a valid law which, in the particular case, is harsh or oppressive, or not warranted by, or disproportionate to, the requirements of the particular circumstances or of the particular case, or is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind, is an unlawful act.
Section 41 is unusual: it does not require the law to be invalid, only its operation in the case to be excessive. It overlaps with unreasonableness as a ground of review.
Section 42 protects liberty and permits deprivation only in specified cases. Section 42(5) allows a complaint that a person is unlawfully or unreasonably detained — and Rule 5(d) places such complaints on the Human Rights List in their own right.
See complaints from custody and habeas corpus, applications for which are also on the List under Rule 5(h).
Freedom from inhuman treatment (s 36), protection of the law (s 37) and freedom from arbitrary search and entry (s 44) are the provisions most frequently invoked where the complaint concerns the conduct of a disciplined force — and Rule 5(e) brings such claims onto the List. See cases against police.
The other categories in Rule 5
(b) Proceedings under section 183 of the Bougainville Constitution for enforcement of Basic Rights under that Constitution — Rule 1 defines “Bougainville Constitution” as the Constitution of the Autonomous Region of Bougainville.
(c) Proceedings under section 23 (sanctions) for imposition of sanctions for breach of prohibitions, restrictions or duties imposed by the Constitutional Laws in regard to human rights issues.
(d) Complaints under section 42(5) that a person is unlawfully or unreasonably detained.
(e) 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 one or more of the Basic Rights.
(f) Proceedings where the issues of fact or law that are likely to arise overlap with the type of issues that commonly arise in enforcement proceedings under sections 57, 58 or 23.
(g) Any proceedings concerning the discharge of powers, functions, duties or responsibilities under Part X (emergency powers).
(h) Applications for a writ of habeas corpus under Order 17.
(i) Proceedings for enforcement of the Correctional Service Act and the Correctional Service Regulation concerning treatment of detainees, calculation of periods of detention and related proceedings.
(j) Applications under section 5(2)(c)(iii) of the Claims By and Against the State Act to allow a further period in which to give notice, where the claim relates to enforcement of a Division III.3 right.
An applicant who has missed the six-month section 5 notice period for a claim engaging a Basic Right applies for an extension — and that application itself goes on the Human Rights List.
That reflects section 2(2) of the Claims By and Against the State Act 1996, which applies the Act to applications under Constitution sections 57 and 58. See late section 5 notices.
Where the issues merely overlap with those in an enforcement proceeding, the matter belongs on the List. Combined with the opening words of Rule 5(a) — in substance, irrespective of whether expressly so described — the Rules cast the net deliberately wide.
A practitioner should therefore ask, of any claim against a public body or a disciplined force, whether it belongs on the Human Rights List. It is not a matter of choosing a label. See the Human Rights Track.
Sources
- National Court Rules 1983 — O 17; O 23 (Human Rights Rules 2010) rr 1, 5
- Constitution — ss 23, 32, 35–37, 41–53, 55, 57, 58, Div III.3, Pt X
- Claims By and Against the State Act 1996 — ss 2, 5
- Constitution of the Autonomous Region of Bougainville — s 183; Correctional Service Act and Regulation — not available on PacLII
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.