T GU UI IN NE EA A TH HE EI IN ND DE EP PE EN ND DE EN NT TS ST TA AT TE EO OF FP PA AP PU UA AN NE EW WG HUMAN RIGHTS RULES 2010

Made pursuant to Section 184 (Rules of Court) of the Constitution and Section 8 (Rules of Court of the National Court) of the National Court Act (Chapter No 38) and all other powers enabling, the following rules, prescribing the practice and procedure of the National Court of Justice relating to the conduct of human rights proceedings and related proceedings, shall come into force on a date to be determined by the Chief Justice. These Rules are in addition to and form part of the procedures for instituting proceedings contained in the National Court Rules. Dated this …. day of ………………. 2010 Chief Justice Sir Salamo Injia Kt Deputy Chief Justice Gibbs Salika CSM OBE Justice Bernard Sakora CBE CSM Justice Mark Sevua CBE Justice Nicholas Kirriwom Justice Les Gavara-Nanu OBE CSM Justice Ambeng Kandakasi Justice Ellenas Batari MBE Justice Salatiel Lenalia Justice Catherine Davani Justice Panuel Mogish Justice David Cannings Justice George Manuhu Justice Kingsley Allan David Justice Sao Gabi Justice Derek Hartshorn ML Justice Joseph Yagi Justice Collin Makail Justice Ere Kariko MBE Justice Graham Ellis Justice Don Sawong MBE Justice John Kawi

   

The National Court Rules are amended by inserting the following: Order 23 Part 8 Human Rights Jurisdiction 1 – Interpretation In this Part, unless the contrary intention appears: Basic Rights means the rights and freedoms described in Rule 5 Bougainville Constitution means the Constitution of the Autonomous Region of Bougainville; Human Rights means the rights and freedoms described in Rule 5; Human Rights List means the list established by Rule 3; Constitutional Laws has the same meaning it has in the Constitution; Listings Rules means Order 10 Rule 9A of the National Court Rules Listing Judge means the Judge conducting listing of cases pursuant to the Listings Rules.
 

2 Purpose The purpose of these Rules is to facilitate a quick and just resolution of proceedings instituted under Sections 57 and 58 of the Constitution for enforcement of the Basic Rights (also known as “Human Rights”) and for enforcement under Section 23 of the Constitution of prohibitions, restrictions or duties imposed by the Constitutional Laws and of related proceedings. 3 Administration (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 List at the Waigani Registry and may from time to time appoint any Judge to deal with proceedings on the Human Rights List. (3) The Registrar shall appoint an officer to be the senior officer in charge of registry proceedings concerning the Human Rights List and shall appoint such other staff as are necessary to ensure the efficient and orderly running of the Human Rights List.

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4 Application These Rules are primarily designed to facilitate the running of the Human Rights List at the Waigani Registry. However, the Rules should also be applied in other Registries, at the discretion of the senior Judge responsible for each Registry, in consultation with the Registrar, with such modification as the Judge deems necessary. 5 Human rights proceedings a) the following proceedings filed in the Waigani Registry shall be placed on the Human Rights List list, and shall be dealt with in accordance with these Rules:

b) proceedings that are, in substance, irrespective of whether expressly so described, for enforcement under Sections 57 (enforcement of guaranteed rights and freedoms) or 58 (compensation) of the Constitution of any of the Basic Rights, viz: i) right to freedom (s 32); ii) right to life (s 35); iii) freedom from inhuman treatment (s 36); iv) protection of the law (s 37); v) proscribed acts (s 41); vi) liberty of the person (s 42); vii) freedom from forced labour (s 43); viii) freedom from arbitrary search and entry (s 44); ix) freedom of conscience, thought and religion (s 45); x) freedom of expression (s 46); xi) freedom of assembly and association (s 47); xii) freedom of employment (s 48); xiii) right to privacy (s 49); xiv) right to vote and stand for public office (s 50); xv) right to freedom of information (s 51); xvi) right to freedom of movement (s 52); xvii) protection from unjust deprivation of property (s 53); xviii) equality of citizens (s 55); and c) proceedings under Section 183 of the Bougainville Constitution for enforcement of Basic Rights under that Constitution; and
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d) proceedings under Section 23 (sanctions) of the Constitution for imposition of sanctions for breach of prohibitions, restrictions or duties imposed by the Constitutional Laws in regard to human rights issues; and e) complaints under Section 42(5) (liberty of the person) of the Constitution that a person is unlawfully or unreasonably detained; and f) proceedings where a claim is made by the plaintiff for any relief or remedy for any tort allegedly committed by 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; and g) proceedings where the issues of fact or law that are likely to arise overlap with the type of issues of fact or law that commonly arise in enforcement proceedings under Sections 57, 58 or 23 of the Constitution; h) any proceedings within the jurisdiction of the National Court concerning the discharge of powers, functions, duties or responsibilities under Part X (emergency powers) of the Constitution; and i) applications for a writ of habeas corpus under Order 17 of the National Court Rules; and j) proceedings for enforcement of the provisions of the Correctional Service Act and the Correctional Service Regulation concerning treatment of detainees, calculation of periods of detention and related proceedings; and k) applications under Section 5(2)(c)(iii) (notice of claims against the State) of the Claims By and Against the State Act to allow a further period in which to give notice to the State of an intention to make a claim against the State, where the claim relates to enforcement of a right or freedom referred to in Division III.3 of the Constitution. 6 (1) Standing to Bring or Appear in Proceedings 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
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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 qualified under sub-rule(a) and 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; a person or body, whether public or private, who has an interest in the protection and enforcement of human rights and freedoms; a person representing an international body with responsibility for or whose principle or a principle function of which is to 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; any other person or body who has a sufficient interest in the protection and enforcement of human rights and freedoms, approved by the Court.

(c)

(d)

(e)

7 Commencement of Proceedings by a Party (1) A human rights proceeding may be commenced by: (a) a Writ of Summons, in which case the file reference shall be “WS (HR)”; (b) a Originating Summons, in which case the file reference shall be “OS (HR)”; (c) by filing a Human Rights Enforcement Application in Form 124, in which case the file reference shall be “HRA”. (2) The person commencing proceedings under Sub-rule (1) shall be called the “plaintiff” and the person against whom proceedings are commenced shall be called “the defendant”. The originating process for enforcement of a right or freedom referred to in Division III.3 of the Constitution shall as far as is practicable identify with precision, by reference to relevant provisions of the Constitution:
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(3)

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(a)

the right or freedom that has been allegedly infringed or of which there is a reasonable probability of infringement; and the orders, declarations or other relief that is sought.

(b) (5)

Complaint Under s42(5) of the Constitution (a) A complaint under Section 42(5) of the Constitution that a person is unlawfully or unreasonably detained may be made by filing a Complaint of Unlawful or Unreasonable Detention in Form 125, (b) the file reference shall be “HRC”, (c) the person making the complaint shall be called “the complainant” and the person(s) against whom the complaint is made shall be called “the respondent(s)”. Filing Fees (a) The filing of a Human Rights Enforcement Application or a Complaint of Unlawful or Unreasonable Detention shall be free of fees;

(6)

(b)

as to whether a filing fee should be paid by any plaintiff filing a writ or summons the Registrar shall exercise a discretion taking into account the nature of the proceedings and whether, in his opinion, payment of a filing fee might be a hardship to the plaintiff. Commencement of Proceedings by the Court

8.

(1)

Where a judge observes, or is informed by the Registrar, the Sherriff or one of their officers, of facts 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) the file reference shall be “HROI” and the responding party, if any, shall be called “the respondent”; and (b) subject to this Rule, the originating process shall be in Form 126 or in such other terms as the Court considers appropriate.

(2)

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(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 as 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 (2) the Court shall ensure, that as soon as the circumstances permit, not being later than seven days after the exercise of such power, a reference in Form 126 is filed and thereafter served on the respondents.

(4)

9 (1)

Statement of Alleged or Suspected Breach of Human Rights Any 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 or freedoms to the attention of the Court by delivering to the Registrar a completed Statement of Alleged or Suspected Breach of Human Rights, in Form 127. After receiving a Statement of Alleged or Suspected Breach of Human Rights, the Registrar shall, within one day, forward the Statement, together with all other relevant information in the possession of the Registrar, to a Judge. After receiving a Statement and other relevant information under Sub-rule (2), the Judge shall decide what further action, if any, is necessary, including whether to file a reference in Form 126 in relation to the proceeding and whether to direct the Public Solicitor under Section 177(2)(b) of the Constitution to provide legal aid, advice and assistance to a person. Request to place a proceeding on Human Rights List or to Remove a Proceeding When any proceedings are filed in Court raising issues under Rule 5 , the plaintiff may request, by filing a notice in Form 128, that the proceedings 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
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(2)

(3)

10.

(1)

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to Rule 5 and other relevant considerations, whether the proceedings are appropriate to be placed on the Human Rights List or on some other List. (2) A person aggrieved by a decision under Sub-rule (1) may apply to the Court, by notice of motion, for review of the decision, supported by a Listing Statement in Form 129; and in such a case all parties to the proceedings shall be served notice of the motion and the listing statement, and shall have a right to be heard on the motion. The decision of the Court on a motion under Sub-rule (2) is final and not subject to appeal. Applications, motions and directions after listing Once a proceeding is placed on the Human Rights List, any application or motions regarding that proceeding shall be set for hearing before the Judge dealing with proceedings on the Human Rights List. Proceedings on the Human Rights List shall be set down for trial in accordance with the directions of the Human Rights List Judge or the Listings 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. Dispensation The provisions of Order 2 Division 2 apply to these Rules..

(3)

11. (1)

(2)

12.

*********************************

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FORM 124 PAPUA NEW GUINEA [IN THE NATIONAL COURT OF JUSTICE] HUMAN RIGHTS ENFORCEMENT APPLICATION FORM 1. 2. 3.
 

O23 r7(c)

Name of Applicant: Address: Phone numbers: What happened? Tell your story why you say someone breached your human rights. Refer to dates and places:

4.

5.

Rights or Freedoms to be enforced. Tick the box next to your right or freedom that has been breached: • • • • • • • • • • • • • • • right to freedom (s 32); right to life (s 35); protection from inhuman treatment (s 36); protection of the law (s 37); proscribed acts (s 41); liberty of the person (s 42); freedom from forced labour (s 43); freedom from arbitrary search and entry (s 44); freedom of conscience, thought and religion (s 45); freedom of expression (s 46); freedom of assembly and association (s 47); freedom of employment (s 48); right to privacy (s 49); right to vote and stand for public office (s 50); right to freedom of information (s 51);
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• • • 6.

right to freedom of movement (s 52); protection from unjust deprivation of property (s 53); equality of citizens (s 55).

Who breached your rights? Name or describe the person who will be a defendant if this proceeding goes to Court:

7.

Do you want the defendant summoned to appear before the National Court?

8.

DECLARATION

I, _______________________________________________________, declare this statement to be true and correct to the best of my knowledge and belief AND I hereby make application for the enforcement of my rights or freedom as guaranteed by the Constitution and seek orders under section 58 and any other orders the Court may see fit to make. Dated this ____________ day of ____________ 20…… ___________________________ Signature of Applicant The application may be made by filling in this form and giving it to: a Clerk of the District Court the Assistant Registrar in your town; or a Judge of the National Court in your Province; or The Registrar of the National Court, PO Box 7018, Boroko, NCD.

Instructions to Court Clerks When this form is handed to you, please forward it as quickly as possible to the Registrar of the National Court. Fax: 325 7732, PO Box 7018, Boroko, NCD.

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FORM 125 PAPUA NEW GUINEA [IN THE NATIONAL COURT OF JUSTICE]

O23 r7(5)(a)

COMPLAINT OF UNLAWFUL OR UNREASONABLE DETENTION UNDER SECTION 42(5) OF THE CONSTITUTION* 1. Name of Complainant: Address: Phone numbers: Where have you been detained? (Give name of Police Lock-up or Correctional Institution.) For how long have you been detained? What happened? Tell your story why you say you have been unlawfully or unreasonably detained.

2. 3.
 

4.

5.

DECLARATION

I, _______________________________________________________, declare this statement to be true and correct to the best of my knowledge and belief AND I hereby make a complaint to the National Court that I have been unlawfully or unreasonably detained. Dated this ____________ day of ____________ 20……

___________________________
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Signature of Complainant The complaint may be made by filling in this form and giving it to: a Clerk of the District Court the Assistant Registrar in your town; or a Judge of the National Court in your Province; or The Registrar of the National Court, PO Box 7018, Boroko, NCD.

Instructions to Court Clerks When this form is handed to you, please forward it as quickly as possible to the Registrar of the National Court. Fax: 325 7732, PO Box 7018, Boroko, NCD.
* Section 42(5) (liberty of the person) of the Constitution states: Where complaint is made to the National Court or a Judge that a person is unlawfully or unreasonably detained— (a) (b) the National Court or a Judge shall inquire into the complaint and order the person concerned to be brought before it or him; and unless the Court or Judge is satisfied that the detention is lawful, and in the case of a person being detained on remand pending his trial does not constitute an unreasonable detention having regard, in particular, to its length, the Court or a Judge shall order his release either unconditionally or subject to such conditions as the Court or Judge thinks fit.

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FORM 126 PAPUA NEW GUINEA [IN THE NATIONAL COURT OF JUSTICE] HROI NO …… 0F ……

O23 r8(1)(b)

IN THE PROCEEDING OF ENFORCEMENT OF BASIC RIGHTS UNDER THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA, SECTION 57 RE [here insert brief description of the proceeding] COMMENCEMENT OF PROCEEDINGS AND SUMMONS THE NATIONAL COURT, [here insert brief reasons for the Court acting on its own initiative], under Section 57(1) of the Constitution, COMMENCES THESE PROCEEDINGS on its own initiative to enforce the rights and freedoms of [here insert the names or description of the persons whose rights or freedoms may have been infringed], those rights being: •

[here insert the right(s) or freedom(s) being enforced, eg freedom from inhuman treatment and punishment under Section 36(1) of the Constitution]

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 ……………. ON …………………….AT …………., so that the National Court may inquire into this proceeding 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: • • ………………………………………………….. …………………………………………………..

AND TAKE NOTICE that failure to comply with this order may be deemed to be contempt of court and expose the person who fails to comply to the sanctions of the criminal law, including arrest, fine and/or imprisonment. DATED THIS ………. DAY OF ……………………., ……... …………………………… JUSTICE ……………….. A JUDGE OF THE NATIONAL COURT OF JUSTICE

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FORM 127 PAPUA NEW GUINEA [IN THE NATIONAL COURT OF JUSTICE] STATEMENT OF ALLEGED OR SUSPECTED BREACH OF HUMAN RIGHTS 1. Name of person making statement: Address: Phone numbers:

O23 r9(1)

2. 3.
 

4.

Your statement: Tell your story about what you saw or heard, and what happened. Give names of the people involved or describe them.

5.

DECLARATION

I, _______________________________________________________, declare this statement to be true and correct to the best of my knowledge and belief AND I hereby bring the information to the attention of the National Court. Dated this ____________ day of ____________ 20……

___________________________ Signature
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Please give this form to: a Clerk of the District Court the Assistant Registrar in your town; or a Judge of the National Court in your Province; or the Registrar of the National Court, PO Box 7018, Boroko, NCD.

Instructions to Court Clerks When this form is handed to you, please forward it as quickly as possible to the Registrar of the National Court. Fax: 325 7732, PO Box 7018, Boroko, NCD.

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FORM 128 PAPUA NEW GUINEA [IN THE NATIONAL COURT OF JUSTICE]

O23 r10

REQUEST FOR PROCEEDING TO BE PLACED ON HUMAN RIGHTS LIST

TO: THE REGISTRAR I request that the attached proceeding, in which the following persons are described as plaintiffs: ……………………………………………………………………; and the following persons are described as defendants: ………………………………. be placed on the Human Rights List.

…………………………………………………… Signed [Plaintiff/defendant or their lawyer to sign]

Date …………………………………………….

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FORM 129 PAPUA NEW GUINEA [IN THE NATIONAL COURT OF JUSTICE] LISTING STATEMENT

O23 r10(1)

The [Plaintiff/Defendant] makes the following statement in support of an application to have these proceedings [placed on/removed from] the Human Rights List: 1. The nature of the dispute... [set out in a summary form];

2.

The issues which are likely to arise in the proceedings are... [set out in a summary manner];

3.

The proceedings ought to be [placed on/removed from] the Human Rights List for the following reasons:

4.

The attitude of other parties to this application is:

……………………………………………….. Signed [Plaintiff or plaintiff’s lawyer shall sign] Date …………………………………………….
 

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