Human rights breaches are often immediate — a person being detained, a search under way, a threatened eviction. The Human Rights Rules are built around that.
Order 23 Rule 8(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 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.
This is exceptional. Everywhere else in the National Court Rules 1983, a proceeding begins with an originating process. Rule 8(3) permits the Court to act informally where formal commencement is not practical.
The discipline follows in Rule 8(4): 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.
So informality buys time; it does not dispense with process. See Court-initiated proceedings.
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 to the Court’s attention by delivering to the Registrar a Statement of Alleged or Suspected Breach of Human Rights, in Form 127.
(2) The Registrar shall, within one day, forward it 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.
The Registrar’s obligation is to forward the Statement within one day. Few provisions in the Rules impose so short a period, and it reflects the urgency the Rules assume.
Note the three categories: alleged or suspected breach, imminent breach, or threatened breach. A threat is enough.
Section 57(5)
Relief is not limited to cases of actual or imminent infringement, but may, if the court thinks it proper to do so, be given —
in cases in which there is a reasonable probability of infringement; or
in which an action that a person reasonably desires to take is inhibited by the likelihood of, or a reasonable fear of, an infringement.
Section 57(3) — the Court may make all such orders and declarations as are necessary or appropriate. There is no list to work within, which matters most in an urgent case where the necessary order may be unusual. See the orders available.
Order 23 Rule 7(3)(a) tracks section 57(5) by requiring the originating process to identify the right that has been allegedly infringed or of which there is a reasonable probability of infringement.
Where formality is still practical
File Form 124 — a Human Rights Enforcement Application, free of fees, reference HRA. Or Form 125 for a detention complaint, reference HRC, also free, and lodgeable with a Clerk of the District Court, an Assistant Registrar, a Judge in the Province, or the Registrar.
Apply for interim relief. Under Rule 11(1), once a proceeding is on the Human Rights List, any application or motion shall be set for hearing before the Judge dealing with matters on the Human Rights List; and under Rule 11(2) that Judge may give such directions under the Listings Rules as are appropriate to ensure the just, efficient and expeditious disposal of cases.
The ordinary machinery remains available. Under Order 14 Rule 9, in an urgent case the Court may grant an injunction on the application of a person who intends to commence proceedings. The Motions Rules then govern an urgent ex parte application — contact the Registrar in writing, file the five specified documents, and seek dispensation with service first.
Out of hours, motions to be moved after official Court sitting time, on weekends and public holidays, must be done by prior arrangement with the Registrar, the Motions Judge being the duty judge.
Note also Order 6 Rule 17: notice of an interlocutory injunction may be served by telegram or letter signed by or on behalf of the Registrar.
Rule 12 and Order 1
Order 23 Rule 12 — the provisions of Division 1.2 (general) of the National Court Rules apply to these Rules.
So an urgent applicant has Order 1 Rule 7 (dispensation with any requirement of the Rules, before or after the occasion for compliance arises), Rule 8 (non-compliance does not render a proceeding void), Rule 12 (directions where the procedure is in doubt), and Rule 15 (extension or abridgment of time).
Order 1 Rule 15 permits the Court to extend or abridge any time fixed by the Rules or by any judgment or order. In an urgent human rights matter it is the abridgment limb that is wanted — shortening a notice period so the matter can be heard at once.
Taken with Rule 7(3)’s as far as is practicable standard, the free filing under Rule 7(5), the one-day Form 127 obligation, and the informal-enforcement power in Rule 8(3), the message of Order 23 is consistent: a procedural obstacle should not stand between a person and the protection of a Basic Right.
Sources
- National Court Rules 1983 — O 1 Div 1.2, rr 7, 8, 12, 15; O 4 Div 5 (Motions Rules); O 6 r 17; O 14 r 9; O 23 (Human Rights Rules 2010) rr 7–12; 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.