Section 57 of the Constitution confers a remedial power unlike anything else in Papua New Guinea civil procedure.
Section 57(3)
A court that has jurisdiction under Subsection (1) may make all such orders and declarations as are necessary or appropriate for the purposes of this 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).
“All such orders and declarations as are necessary or appropriate.” The subsection prescribes no list. Whatever order is necessary or appropriate to protect the right may be made.
Orders about statutes not yet in force. The Court 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 is a striking power, and it means a person need not wait for a law to commence before challenging its effect on a Basic Right.
Section 57(5)
Relief under this section is not limited to cases of actual or imminent infringement of the guaranteed rights and freedoms, 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.
Actual or imminent infringement — the ordinary case.
A reasonable probability of infringement — the breach has not happened and is not imminent, but is reasonably probable.
Inhibition — a person is deterred from doing something they reasonably desire to take by the likelihood of, or a reasonable fear of, infringement. Nothing has happened at all; the chilling effect is itself the ground.
That third limb matters for rights such as freedom of expression (s 46) and freedom of assembly and association (s 47), where the harm often lies in what people are deterred from doing.
Order 23 Rule 7(3)(a) of the National Court Rules 1983 tracks this: the originating process should identify the right that has been allegedly infringed or of which there is a reasonable probability of infringement.
What may be ordered
| Order | Basis |
|---|---|
| Declaration that a right has been infringed | s 57(3) |
| Order restraining a continuing or threatened infringement | s 57(3); and see injunctions |
| Order requiring something to be done — a person produced, conditions changed, a document released | s 57(3) |
| Release from detention, unconditionally or on conditions | s 42(5)(b) — see complaints from custody |
| Order or declaration about a statute, even before it commences | s 57(3) |
| Damages, including exemplary damages | s 58 |
| Sanctions for breach of a prohibition, restriction or duty imposed by a Constitutional Law | s 23; O 23 r 5(c) |
| Direction to the Public Solicitor to provide legal aid, advice and assistance | s 177(2)(b); O 23 r 9(3) |
Section 57(4)
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 in order to allow a question concerning the effect or application of this Division to be determined in accordance with Subsection (1).
Section 57(4) speaks of any court, tribunal or authority. So a tribunal or administrative body faced with a Basic Rights question arising in its own proceedings may pause and let the National Court or Supreme Court decide it.
Compare section 18(2), under which a court faced with a question of interpretation or application of a Constitutional Law shall refer it to the Supreme Court unless trivial, vexatious or irrelevant. Section 57(4) is permissive and wider in who may use it; section 18(2) is mandatory and confined to courts.
Section 57(6)
The jurisdiction and powers of the courts under this section are in addition to, and not in derogation of, their jurisdiction and powers under any other provision of this Constitution.
The section 57 power does not replace or limit the Court’s other powers. It is additional.
So a human rights proceeding may sit alongside judicial review under Order 16, or an ordinary claim in tort, and the Court retains its section 155(4) power to make such other orders as are necessary to do justice in the circumstances of a particular case.
Order 23 Rule 5(f) reflects the same reality by bringing onto the Human Rights List proceedings whose issues of fact or law are likely to overlap with enforcement proceedings, and Rule 5(e) brings in tort claims against 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.
In practice
- Identify the right by its section, as Rule 7(3)(a) requires as far as is practicable. See the Basic Rights.
- State the orders, declarations or other relief sought — Rule 7(3)(b).
- Do not feel confined to familiar remedies. Section 57(3) permits all such orders and declarations as are necessary or appropriate; the question is what will actually protect the right.
- Where there is no completed breach, plead section 57(5) expressly — reasonable probability of infringement, or inhibition by likelihood or reasonable fear.
Section 41(2) — the burden of showing that Subsection (1)(a), (b) or (c) applies in respect of an act is on the party alleging it, and may be discharged on the balance of probabilities.
So where the claim is that an act done under a valid law was harsh or oppressive, disproportionate, or not reasonably justifiable in a democratic society, the applicant carries the burden — but only to the civil standard.
Sources
- Constitution — ss 18, 23, 41, 42, 46, 47, 57, 58, 155, 177, Div III.3
- National Court Rules 1983 — O 16; O 23 (Human Rights Rules 2010) rr 5, 7, 9
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.