Human rights matters in the National Court are not managed with ordinary civil litigation. Order 23 of the National Court Rules 1983 creates a separate track.
Rule 3
(1) There shall be a Human Rights List maintained by the Registrar, which shall contain 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 Human Rights List.
(3) The Registrar shall appoint an officer to be the senior officer in charge of registry matters concerning the Human Rights List, and shall appoint such other staff as are necessary to ensure the efficient and orderly running of the List.
A List, kept by the Registrar and recording the status of every human rights proceeding. A Judge Administrator, appointed by the Chief Justice. And a senior registry officer dedicated to the List, with such other staff as are necessary.
That is a considerable institutional commitment for a jurisdiction whose purpose, under Rule 2, is to facilitate a quick and just resolution of enforcement proceedings.
Rule 1
“Listing Judge” means the Judge conducting listing of cases pursuant to the Listings Rules.
“Listings Rules” refers to Order 10, Rule 9A of the National Court Rules.
Order 23 does not displace the Listings Rules 2005; it draws on them. Rule 11(2) allows the Human Rights List Judge to make such orders or give such directions under the Listings Rules as are appropriate.
So the Court has the full listings toolkit — mentions, directions hearings, pre-trial conferences, the 24-item checklist — but applies it through the Human Rights List rather than the general civil list.
Rule 10
(1) When any proceedings are filed, the plaintiff may request, by filing a notice in Form 128, that they be placed on the Human Rights List — and, irrespective of whether such a request is made, the Registrar or his delegate will decide, having regard to Rule 5 and other relevant considerations, whether they are appropriate to be placed on the Human Rights List or on some other list.
(2) A person aggrieved may apply to a Judge by notice of motion for review, supported by a listing statement in Form 129; all parties shall be given notice and shall have a right to be heard.
(3) The decision of the Court on a motion under Sub-rule (2) is final and not subject to appeal.
The Registrar decides having regard to Rule 5 — which places on the List proceedings that are, in substance, irrespective of whether expressly so described, for enforcement of the Basic Rights, together with the nine other categories in Rule 5(b) to (j).
So a party cannot keep a claim off the Human Rights List by the way it is pleaded, nor put it on by labelling it. Rule 5(f) reaches proceedings whose issues of fact or law are likely to overlap with those in enforcement proceedings.
And sub-rule (3) is emphatic: a decision on a listing review is final and not subject to appeal. The Rules will not allow the question of which list a case belongs on to become litigation in itself.
Rule 11
(1) Once a proceeding is placed on the Human Rights List, any application or motion regarding that proceeding shall be set for hearing before the Judge dealing with matters on the Human Rights List.
(2) Proceedings on the Human Rights List shall be set down for trial in accordance with the directions of the Human Rights List Judge, who 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.
Sub-rule (1) is unqualified: any application or motion in a listed proceeding goes before the Human Rights List Judge.
Contrast Order 16 Rule 8(1), under which any interlocutory application in judicial review may be made to any Judge notwithstanding that another Judge will hear the review. The human rights track takes the opposite approach — concentration rather than dispersal.
Sub-rule (2) means setting down does not follow the ordinary Order 10 Division 1 route with its six-week rule and Form 40 notice. It follows the directions of the Human Rights List Judge.
Why it is structured this way
| Feature | Human Rights Track | Ordinary civil |
|---|---|---|
| List | Human Rights List, maintained by the Registrar — r 3(1) | General civil list |
| Judge | Judge Administrator of the Human Rights Track; all applications before the List Judge — rr 3(2), 11(1) | Listings Judge, then trial judge |
| Commencement | Writ, originating summons, Form 124, Form 125, or by the Court itself | Writ or originating summons |
| Filing fee | Free for Forms 124 and 125; waivable for others on hardship — r 7(5) | Payable |
| Standing | Five wide categories — r 6 | Ordinary rules |
| Setting down | By direction of the List Judge — r 11(2) | Form 40 after six weeks — O 10 Div 1 |
| Listing disputes | Reviewable once; then final and not subject to appeal — r 10(3) | Ordinary appeal rights |
Rule 7(6) — all human rights applications filed and pending determination by the National Court prior to commencement of the Human Rights Rules shall be retained under file reference MP No … of … (HR) and shall constitute the inaugural Human Rights List.
The Rules commenced on 1 July 2011, so matters filed before that date carry the MP … (HR) reference. That explains the mixed references seen in older human rights matters — and note that MP is also one of the file references the Listings Rules assign to human rights applications, winding-up and insolvency petitions and other miscellaneous civil applications.
Under Rule 12, the provisions of Division 1.2 (general) of the National Court Rules apply to these Rules — so dispensation, non-compliance, directions and extension of time all carry over. See filing a human rights application.
Sources
- National Court Rules 1983 — O 1 Div 1.2; O 10 rr 1–9, 9A; O 16 r 8; O 23 (Human Rights Rules 2010) rr 1–12; Forms 128, 129
- Constitution — ss 57, 58, 184
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.