ORDER 23.- HUMAN RIGHTS.

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;

Constitutional Laws has the same meaning it has in the Constitution;

Human Rights refers to the rights and freedoms described in Rule 5;

Listing Judge means the Judge conducting listing of cases pursuant to the Listings Rules.

Listings Rules means Order 10 Rule 9A of the National Court Rules;

2. Purpose.

The purpose of these Rules is to facilitate a quick and just resolution of Court 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 matters.

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 Track 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 matters 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.

4. Application.

These Rules are designed to facilitate the running of the Human Rights List.

5. Human rights proceedings.

The following proceedings shall be placed on the Human Rights List, and shall be dealt with in accordance with these Rules:

a) 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

b) proceedings under Section 183 of the Bougainville Constitution for enforcement of Basic Rights under that Constitution; and

c) 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

d) complaints under Section 42(5) (liberty of the person) of the Constitution that a person is unlawfully or unreasonably detained; and

e) 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

f) 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;

g) 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

h) applications for a writ of habeas corpus under Order 17 of the National Court Rules; and

i) 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

j) 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. 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 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 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;

(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.

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) an Originating Summons, in which case the file reference shall be "OS (HR)";

(c) 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".

(3) 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:

(a) the right or freedom that has been allegedly infringed or of which there is a reasonable probability of infringement; and

(b) the orders, declarations or other relief that is sought.

(4) 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, in which case -

(a) the file reference shall be "HRC",

(b) 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)".

(5) As to Filing Fees

(a) The filing of a Human Rights Enforcement Application or a Complaint of Unlawful or Unreasonable Detention shall be free of fees; and

(b) The Registrar shall for the purposes of other human rights proceedings exercise the discretion whether a filing fee should be paid by a plaintiff taking into account the nature of the proceedings and whether payment of a filing fee might be a hardship to the plaintiff.

(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.

8. Commencement of Proceedings by the Court.

(1) Where a judge observes, or is informed by the Registrar or the Sheriff or one of their officers, of facts which may constitute a breach of Basic Rights the Court may commence proceedings on its own initiative.

(2) 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.

(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.

(4) Where the Court exercises a power under Sub-rule (2) a 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.

9. Statement of Alleged or Suspected Breach of Human Rights.

(1) Any Judge or Officer of the Court or any member of the Court staff or 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.

(2) 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.

(3) 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 open a HROI file in relation to the matter 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.

10. Request to place a proceeding on Human Rights List or to Remove a

Proceeding.

(1) When any proceedings are filed in Court, 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 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 a Judge, 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 given notice of the motion and the listing statement, and shall have a right to be heard on the motion.

(3) The decision of the Court on a motion under Sub-rule (2) is final and not subject to appeal.

11. Applications, motions and directions after listing.

(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.

12. Dispensation.

The provisions of Division 1.2 (general) of the National Court Rules apply to these Rules.