Standing in human rights proceedings is deliberately generous. Order 23 Rule 6 of the National Court Rules 1983 sets it out, and it is expressed without derogating from the still wider gateway in the Constitution.
Order 23 Rule 6
Without derogating from Sections 57(1) and (2) of the Constitution, persons who may bring or commence or appear in a human rights proceeding include —
(a) a person whose human rights or freedoms are adversely affected by any act or omission of —
(i) the government or a governmental body or a person exercising public power or performing public functions; or
(ii) a private person or a body corporate, including a company, and any of its officers or employees exercising private powers or performing private functions;
(b) a person acting on behalf of a person who is under a disability or is unable to fully and freely exercise their right to bring an application for enforcement of their human rights or freedoms;
(c) a person or body, whether public or private, who has an interest in the protection and enforcement of human rights and freedoms;
(d) a person representing an international body with responsibility for, or a principal function of which is, protecting human rights and freedoms under international laws and conventions such as the Universal Declaration of Human Rights and any other declarations, recommendations or decisions of the General Assembly of the United Nations concerning human rights and freedoms;
(e) any other person or body who has a sufficient interest in the protection and enforcement of human rights and freedoms, approved by the Court.
Paragraph (a)(ii) is significant
Paragraph (a)(ii) expressly contemplates a person whose rights are adversely affected by the act or omission of a private person or a body corporate, including a company, and any of its officers or employees exercising private powers or performing private functions.
That is a striking provision, and it distinguishes human rights proceedings sharply from judicial review, which reaches only the exercise of public power.
So a claim that a company’s conduct infringed a Basic Right is within Rule 6, whereas the same conduct could not be judicially reviewed. See the Basic Rights.
Paragraphs (b) and (c)
Paragraph (b) — a person acting on behalf of a person who is under a disability or is unable to fully and freely exercise their right to bring an application.
Note the second limb. It is not confined to legal disability: it covers a person unable to fully and freely exercise the right — which reaches a detainee, a person in a remote area, a person under duress or without means.
Paragraph (c) — a person or body, whether public or private, who has an interest in the protection and enforcement of human rights and freedoms. This tracks the language of Constitution section 57(1) and permits a human rights organisation, a church body or a community group to bring proceedings.
In ordinary civil proceedings a disabled person sues by a next friend under Order 5 Rule 19, and that next friend must act by a solicitor under Rule 20(2). Order 23 Rule 6(b) is broader and imposes no such requirement — consistent with the purpose of the Rules, which is to facilitate a quick and just resolution.
Similarly, standing for judicial review requires a sufficient interest in the matter under Order 16 Rule 3(5). Rule 6(c) asks instead for an interest in the protection and enforcement of human rights and freedoms — a different and often easier test.
Paragraph (d)
A person representing an international body with responsibility for, or a principal function of which is, protecting human rights and freedoms under international laws and conventions may bring or appear in proceedings — the Rule naming the Universal Declaration of Human Rights and declarations, recommendations or decisions of the General Assembly of the United Nations.
It reflects the place of international human rights instruments in Papua New Guinea’s constitutional scheme. The Constitution itself refers to the Universal Declaration of Human Rights, and Division III.3 was drafted against that background.
Paragraph (d) is rarely invoked, but its presence signals that the Human Rights Rules were framed with an outward-looking view of who may vindicate these rights.
Section 57
(1) A right or freedom referred to in Division III.3 shall be protected by, and is enforceable in the Supreme Court or the National Court or any other court prescribed for the purpose — either on its own initiative or on application by any person who has an interest in its protection and enforcement.
Rule 6 operates without derogating from sections 57(1) and (2). So the Rule adds to, and does not cut down, the constitutional position.
The opening words are “persons who may bring or commence or appear in a human rights proceeding include”. The list is not closed — and paragraph (e) makes that explicit by admitting any other person or body who has a sufficient interest in the protection and enforcement of human rights and freedoms, approved by the Court.
So an applicant who does not fit squarely within (a) to (d) should ask the Court to approve their standing under (e), explaining the interest asserted.
Section 57(1) permits enforcement on the Court’s own initiative. That is a power no other civil jurisdiction in the National Court confers, and it is dealt with separately — see whether the Court can start a human rights case itself.
Note finally that standing to bring proceedings is one thing; the section 5 notice requirement under the Claims By and Against the State Act 1996 is another, and section 2(2) of that Act applies it to applications under Constitution sections 57 and 58 where the State is the defendant.
Sources
- National Court Rules 1983 — O 5 rr 19, 20; O 16 r 3; O 23 (Human Rights Rules 2010) rr 2, 5, 6
- Constitution — ss 57, 58, Div III.3
- Claims By and Against the State Act 1996 — ss 2, 5
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.