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PAPUA NEW GUINEA [IN THE NATIONAL COURT OF JUSTICE] HROI NO 1 0F 2014 IN THE MATTER OF ENFORCEMENT OF BASIC RIGHTS

UNDER THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA, SECTION 57 RE CIRCUMSTANCES OF ALLEGED DETENTION AT THE REGIONAL PROCESSING CENTRE AT LOMBRUM NAVAL BASE, MANUS PROVINCE, OF PERSONS SEEKING ASYLUM IN AUSTRALIA, TRANSFERRED TO MANUS, KNOWN GENERALLY AS ASYLUM SEEKERS OR TRANSFEREES

WAIGANI : CANNINGS J 27 FEBRUARY 2014 Human rights Constitution, Section 57 (enforcement of guaranteed rights and freedoms) power and duty of National Court to inquire into and protect and enforce guaranteed rights and freedoms. The National Court, having taken judicial notice of the alleged detention at the regional processing centre at Lombrum Naval Base, Manus Province, of a considerable number of persons seeking refugee status or asylum in Australia, who have been transferred to Manus pursuant to memoranda of agreement between the Governments of Papua New Guinea and Australia, known generally as asylum seekers or transferees, and reports of alleged human rights violations and complaints about the conditions of detention and disturbances resulting in injuries to such persons, decided on its own initiative to inquire into such matters by invoking Section 57(1) of the Constitution. This is the text of the Courts opening statement. OPENING STATEMENT This was a statement of the National Court made at the commencement of proceedings under Section 57(1) of the Constitution.

CANNINGS J: The National Court has taken judicial notice of the alleged detention at the regional processing centre at Lombrum Naval Base, Manus Province, of a considerable number of persons seeking refugee status or asylum in Australia, who have been transferred to Manus pursuant to memoranda of agreement between the Governments of Papua New Guinea and Australia, known generally as asylum seekers or transferees, and reports of alleged human rights violations and complaints about the conditions of detention and disturbances resulting in injuries to such persons. JURISDICTION I, as a Judge of the National Court, have decided on my own initiative to inquire into such matters by invoking Section 57(1) of the Constitution, which states:
A right or freedom referred to in this Division [III.3, Basic Rights] shall be protected by, and is enforceable in, the Supreme Court or the National Court either on its own initiative or on application by any person who has an interest in its protection and enforcement [emphasis added].

AREAS OF CONCERN On 24 February 2014 I issued these proceedings as a Human Rights Own Initiative matter. The particular human rights that I consider might require protection and enforcement are: the right to freedom based on law under Constitution, Section 32(2); the right to freedom from inhuman treatment under Constitution, Section 36(1); the right to the full protection of the law under Constitution, Section 37(1); the right to be treated with humanity and with respect for the inherent dignity of the human person under Constitution, Section 37(17); the right of persons under voting age who are in custody to be separated from other persons in custody and be accorded treatment appropriate to their age under Constitution, Section 37(19);

the right to liberty under Constitution Section 42(1); the right of any person who is detained to be informed promptly, in a language that he or she understands, of the reasons for his or her detention and of any charge against him or her, to be permitted whenever practicable to communicate without delay and in private with a member of his or her family or a personal friend, to be permitted whenever practicable to communicate without delay and in private with a lawyer of his or her choice, to be given adequate opportunity to give instructions to a lawyer of his or her choice in the place of detention and to be informed immediately on his or her detention of those rights, under Constitution, Section 42(2); the right of any person who is detained to complain to the National Court that he or she is unlawfully or unreasonably detained, under Constitution, Section 42(5).

BASIC RIGHTS Guiding the Court in this Inquiry will be the following statement on Basic Rights in the Preamble to the Constitution:
Basic Rights WE HEREBY ACKNOWLEDGE that, subject to any restrictions imposed by law on non-citizens, all persons in our country are entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever their race, tribe, places of origin, political opinion, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the legitimate public interest, to each of the following: (a) (b) (c) (d) (e) (f) life, liberty, security of the person and the protection of the law; and the right to take part in political activities; and freedom from inhuman treatment and forced labour; and freedom of conscience, of expression, of information and of assembly and association; and freedom of employment and freedom of movement; and protection for the privacy of their homes and other property and from unjust deprivation of property,

and have accordingly included in this Constitution provisions designed to afford protection to those rights and freedoms, subject to such limitations on that protection as are contained in those provisions, being limitations primarily designed to ensure that the enjoyment of the acknowledged

4 rights and freedoms by an individual does not prejudice the rights and freedoms of others or the legitimate public interest.

ORIGINATING PROCESS This inquiry was commenced in accordance with Rule 8 (commencement of proceedings by the court) of the Human Rights Rules 2010 (Order 23 of the National Court Rules), which states:
(1) Where a Judge observes, or is informed by the Registrar or Sheriff or one of their officers, of a fact or matter which may constitute a breach of Basic Rights, the Court may commence proceedings on its own initiative. Where the National Court commences proceedings on its own initiative in accordance with Section 57 of the Constitution (a) (b) the file reference shall be HROI and the responding party, if any, shall be called the respondent; and subject to this Rule, the originating process shall be in Form 126 or in such other terms as the Court considers appropriate.

(2)

(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 (basic rights) of the Constitution 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. Where the Court exercises a power under Sub-rule (3), 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.

(4)

The originating process, bearing the file reference HROI No 1 of 2014, was issued in Form 126 of the National Court Rules. The issuing of the originating process served two purposes. It marked the formal commencement of the proceedings. It also provided the vehicle by which a number of persons have been summoned to appear before the Court. The originating process states:

5 AND FOR THE PURPOSES OF THESE PROCEEDINGS THE FOLLOWING PERSONS ARE UNDER SECTION 57(3) OF THE CONSTITUTION SUMMONED TO APPEAR BEFORE THE NATIONAL COURT AT WAIGANI ON 27 FEBRUARY 2014 AT 9.30 AM so that the National Court may inquire into this matter and determine whether it is necessary or appropriate to make further orders or declarations for the purposes of enforcement of Basic Rights under Section 57(3) of the Constitution: 1 2 3 4 5 the Chief Migration Officer; the Public Solicitor; the Secretary, Department of Foreign Affairs and Trade; the Secretary, Department of Justice and Attorney-General; the Secretary, Department of Prime Minister and National Executive Council.

FOCUS OF INQUIRY I intend that the focus of the Inquiry (which might be regarded as terms of reference) will be on three issues: 1 What human rights do the transferees have under the Constitution, if any? Have those rights, if any, been or are they now being, administered to them? If not, what orders and declarations should the Court make to protect and enforce those rights?

As to the third issue, it should be noted that the National Court has an extensive power of enforcement available under, amongst other laws, Section 57(3) of the Constitution, which states:
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).

PROCEDURE There is no defined procedure for an Inquiry of this nature. But it is useful if I say at the outset how I see the Inquiry progressing.

At this opening hearing I will: verify that those persons summoned have appeared in accordance with the summons; consider who should be joined as parties to the proceedings; ask whether there are any applications for persons or organisations to be joined as a party to the proceeding; consider the question of legal aid for the transferees; give directions for the conduct of the Inquiry.

A second stage of the hearing I intend to have in a weeks time, in Madang (close to Manus). This is an opportunity for hearing of any motions or applications to be joined as a party. The third stage of the hearing I anticipate will be in Lorengau, in the week commencing Monday 10 March. Evidence will be received at this hearing. The Court will inspect the regional processing centre. Transferees will be invited to give evidence. It is anticipated that this process will take at least three days. A fourth stage of the hearing will be in Madang in the week commencing Monday 17 March. Submissions will be received. The final stage of the hearing will be in Waigani in the week commencing Monday 24 March. Final submissions will be received. It is my intention to close the Inquiry by delivering a judgment by the end of March 2014. Those are my proposals. I will now ask for appearances and assess the response to the summonses and attend to other preliminary matters. Stated accordingly. _____________________________