N11600

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

HROI NO. 08 OF 2025

IN THE MATTER OF ENFORCEMENT OF BASIC RIGHTS
UNDER SECTION 57 OF THE CONSTITUTION OF
THE INDEPENDENT STATE OF PAPUA NEW GUINEA

RE: BAISU CORRECTIONAL FACILITY

WABAG: ELLIS J
20 NOVEMBER 2025

HUMAN RIGHTS – Conditions in Baisu Correctional Facility – lack of repairs and maintenance – available funding low – risk of escape – risk of shutdown – breaches of s 36(1), s 37(1) and s 37(17) of the Constitution – need for adequate funding for the repair and maintenance of the Baisu Correctional Facility

Cases cited
No cases are cited in these reasons

Counsel
There was no legal representation

REASONS

1.	ELLIS J: These are the reasons for the orders made today in this matter, which was commenced following observation of conditions at the Correctional Facility at Baisu.  The term “correctional facility” is used to indicate the facilities intended to achieve the correction of those who have been found to have engaged in criminal conduct.  However, this matter has revealed that term to also be appropriate because those facilities are in need correction.

Background

2.	The reason why this matter was commenced is that a judge takes on oath to uphold the Constitution, which includes the following human rights provisions (emphasis added):

(1)	Section 36(1) provides that: “No person shall be submitted to … treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person.”

(2)	Section 37(1) is expressed as follows (emphasis added): “Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.”

(3)	Section 37(17) reads: “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”

3.	On Thursday 30 October 2025, the Court became aware of conditions at Corrective Institution at Baisu, near Mount Hagen, in Western Highlands Province, which gave raise to the concerns summarised below:

(1)	Baisu is now housing prisoners from as many as seven provinces: Eastern Highlands, Jiwaka, Simbu, Southern Highlands, Hela, Enga and Western Highlands.

(2)	The main administration building and three maximum security cell blocks have been condemned by the Provincial Health Authority, with the result that they are considered unfit for human habitation.

(3)	The building where prisoner’s rations are stored is about to collapse and has also been condemned by the Provincial Health Authority.

(4)	As a result, there is overcrowding, including 109 accused persons held in remand facilities that should only accommodate 80.	

(5)	Officers cannot be stationed in the guard towers as they are at risk of falling over.  That may well explain why all but one of the accused men, held on remand, due to stand trial in Porgera in November, have escaped.

(6)	There is an inadequate transport fleet, which is why a police vehicle had to be borrowed to bring six accused men to Wabag for the first day of a trial and why that trial, commenced in Wabag, had to be completed at the courthouse in Baisu.

(7)	The sewerage system is blocked and overflowing, with untreated human waste evident above ground.

(8)	There is an inadequate water supply which has created the need to store water in buckets, which creates an increased risk of disease.

(9)	Power failures are common.

(10)	The perimeter security fence is rotting away.

4.	A report dated 28 November 2023, prepared by the Western Highlands Provincial Health Authority, assessed 95 aspects of the facilities at Baisu.  They were categorised as (1) very serious/critical, (2) serious, (3) not really serious.  Of those 95 aspects, 68 were classified as very serious and 27 as serious. None were classified as not really serious.  It must be observed that was almost two years ago.

5.	A further report, prepared at the same time, contains very telling photos.  Headed “Upgrading of infrastructures at Baisu Correctional Institutional Services”, that report included a detailed, itemised cost for that upgrade for which the total estimated cost was, at that time, just over K49 million.

6.	The conditions at the Baisu Correctional Facility clearly suggest two risks:

(1)	the risk of a mass breakout from Baisu, and
(2)	the risk that Baisu will be forced to close if more buildings are condemned.

7.	It was in those circumstances that the Court considered the best way to assess both the breaches of the provisions of the Constitution quoted above, and the risks set out in the previous paragraph, was to ask three questions of the relevant Minister:

(1)	What is the amount which has been spent on repairs and maintenance of the Correctional Facility at Baisu, in Western Highlands, during the years commencing 1 January 2024 and 1 January 2025?
(2)	What amount has been budgeted for repairs and maintenance of the Correctional Facility at Baisu, in Western Highlands Province, during the year commencing 1 January 2026?
(3)	What is it intended to do if the remaining buildings in the Correctional Facility at Baisu, in Western Highlands Province, are also condemned with the result it is forced to close?

8.	What the Court received was not just a bare answer to those three questions, but a helpfully detailed affidavit of seven pages with 85 pages of annexures, the contents of which are summarised below.  However, it is first desirable to provide an explanation that will aid an understanding of what this Court has done and why.

Explanation

9.	Papua New Guinea operates under a Westminster system of government, that name deriving from the place in London where the British parliament is located.  One of the features of that system of government is the separation of powers into three branches which are called the executive, legislative, and judicial branches.  

10.	The legislative branch (the parliament or the MPs) passes laws and governs the nation.  The executive branch (the public service or the public servants) administers those laws and manages operations of the government.  The judicial branch (the courts or the judges) interprets the laws and applies them when resolving any dispute.  Those three branches are separate but linked.  

11.	As between the legislative and judicial branches, by way of example, if the parliament did something that was contrary to the Constitution, the court could rule that the Constitution had been breached but should not usurp the role of Parliament by making a decision that was for the parliament to make.  

12.	As between the legislative and executive branches, the MPs should govern and the public servants should manage.  There is a link between those two branches in that there is a Minister appointed to each government department but, again, it is the role of the minister to govern and not manage that area of the government’s operations.

13.	As between the judicial and executive branches, caution needs to be exercised before a judge tells the public service how to spend money because money that is spent in one area will not be available for another area.  If the amount involved is small, it would not be expected to have any significant impact on other areas.  If the amount is larger, it may involve the judicial branch of government intruding into the operations of the executive branch of government by rewriting expenditure plans.    However, if the amount is so large as to call into question the extent of the amount allocated in the budget by the National Parliament, making an order based on breaches of the Constitution may intrude not only into the executive branch but also into the legislative branch.

14.	That is because it is for the legislative branch of government to appropriate (ie allocate) money in the National Budget which, when made available to the executive branch of government, can be spent.  In other words, in a manner similar to a family budget, spending must be within the allocated funds.  As with most families, so with the nation: the demand for money exceeds the supply of money.

15.	Simply stated, the question which this matter raises is whether the identified breaches of the Constitution, having regard to the amount required to remedy those breaches, involves only an expenditure issue or a budget issue. 

Minister’s response

16.	The short answers to the questions asked of the Minister by the Court are set out below, noting that the need was assessed at K49 million about two years ago:

(1)	The amount which has been spent on repairs and maintenance of the Correctional Facility at Baisu, in Western Highlands, during the years commencing 1 January 2024 was K1 million and for the year commencing 1 January 2025 was K1.5 million.
(2)	The amount which has been budgeted for repairs and maintenance of the Correctional Facility at Baisu, in Western Highlands Province, during the year commencing 1 January 2026 is K5.6 million.
(3)	There is no plan for what would be done if the Correctional Facility at Baisu, in Western Highlands Province, is forced to close.

17.	Before going to the Minister’s affidavit in more detail, it is necessary to highlight two requests made in it, at paragraphs 30 and 31.  What was said in those paragraphs is quoted below:

Therefore, I also pray for this honourable Court to make Orders for the Department of National Planning and Monitoring and Department of Treasury [to] approve and to provide funding as requested by the Correctional Service Department to address this subject issue before the Court promptly.

Further, the Prime Minister and the National Executive Council (NEC) shall bring this matter to the House of Parliament and consider and address this issue as a matter of priority on the list of next year[‘s] budget and to ensure the Funding for Correctional Service are available as per budget submitted.

18.	Attempting to be complete, concise and correct, the Court summarises what is contained in the Minister’s affidavit as follows:

(1)	In 2023 the Development Budget Appropriation was K27 million.
(2)	In 2024 the Development Budget Appropriation was K32 million, but warrants were only received for K7.5 million and cash of only K5 million was released.
(3)	In 2025 the Development Budget Appropriation was K32 million, but warrants were only received for K21.6 million and cash of only K5.5 million was released.
(4)	Over those three years, the total budget appropriation was K91 million but only K21 million was able to be spent on a total of 21 prisons and 7 lock-ups.  That suggests an insufficient amount for the maintenance of other prisons.
(5)	Of those amounts, only K4 million was spent on repairs and maintance at Baisu for the three years from 2023 to 2025: K1.5 million in 2023, K1 million in 2024 and K1.5 million in 2025.
(6)	As a result, money has only been available to address the most urgent issues and has not been sufficient to address the big issue of condemned facilities.
(7)	An amount of K5.6 million has been budgeted for 2026.  The work proposed is set out in the following table.
Proposed Work Component (FY 2026)
	Estimated Cost (K)	
1 – Full restoration of Cell Blocks A and B	2,000,000	
2 – Sewerage and wastewater treatment restoration	1,100,000	
3 – Water reticulation, pump station and storage tank	800,000	
4 – Electrical system & replace standby generator	600,000	
5 – New inmate ablution ad kitchen block	700,000	
6 – Perimeter fencing and guarding post upgrades
	400,000	
Total proposed cost	K5,600,000	

(8)	That proposed work addresses the most urgent matters set out in paragraph 3 above and would thereby address the worst breaches of the Constitution.
(9)	Baisu serves a total of seven provinces: Enga, Hela, Southern Highlands, Western Highlands, Eastern Highlands, Jiwaka and Simbu.
(10)	No funding for Baisu has been contributed by any Provincial Government.
(11)	Funding support has been sought from the Australian Government through the Bilateral Security Agreement.  K1.9 million will be released upon completion of the design and costing phase. 

19.	That affidavit made it clear that it is not only Superintendent at Baisu but also the Acting Commissioner of the Papua New Guinea Correctional Service and the Minister for Correctional Services who are placed in a very difficult position.  These reasons should not be taken to suggest any criticism of any of them. 

Consideration

20.	As the Court was on circuit in Porgera when the Minister’s affidavit was received by the National Court in Wabag on 13 November 2025, it was not until 19 November 2025 that its contents could be considered.  In view of the contents of that affidavit, these reasons have been prepared overnight in view of the revealed intention of the National Parliament to consider the National Budget for 2026 from next Tuesday, 26 November 2025.

21.	The issue raised by this matter, and the Minister’s affidavit, go beyond the ability of the Department to address.  They also go behind the ability of the Minister for Correctional Services to address.

22.	In such circumstances, the Court considers it would not be appropriate to make any order for either corrective work to be undertaken or for money to be spent.

23.	The position therefore remains that there is a risk of a mass breakout at the Baisu Correctional Facility and a risk that it will be forced to close.  If either of those risks eventuate, it will not be because the National Court ignored the Constitution or because the Department failed to spend available funds but because an inadequate amount has been allocated for the repair and maintenance of correctional facilities at Baisu by a number of governments over a number of years.

24.	This issue is not and should not be made a political issue: it is an issue of how and when it is intended to address breaches of the Constitution which are requiring remandees and prisoners to live in unacceptable conditions and Correctional Service officers to work in unacceptable conditions.

25.	Given the nature and extent of the breaches of the Constitution existing at Baisu, all this Court can do is take urgent steps to have this issue brought to the attention of the current Members of Parliament before the National Budget for 2026 is finalised.

26.	For the avoidance of doubt, the Court makes the following findings:

(1)	The current conditions at the Baisu Correctional Facility are such as to amount to breaches of s 36(1), s 37(1) and s 37(17) of the Constitution.
(2)	Two years ago, when a Parliamentary Committee on Law and Order considered this matter, it was estimated that K49 million was needed for the repair and maintenance of the Baisu Correctional Facility.
(3)	Only K4 million has been spent on repairs and maintenance at Baisu in the last three years.
(4)	As a result, insufficient steps have been taken since the need for repairs and maintenance at the Baisu Correctional Facility was considered by a Parliamentary Committee on Law and Order in 2023.
(5)	It is difficult to see how anything less than K5.6 million should be not only appropriated but also made available for repairs and maintenance at the Baisu Correctional Facility in 2026.
(6)	The nature and extent of the need for repairs and maintenance at Baisu is a matter which needs the urgent attention of the executive branch of government, namely the Papua New Guinea Correctional Service, but is beyond its current ability to sufficiently address.
(7)	As that need is beyond that current ability of the Papua New Guinea Correctional Service, it is a matter that needs the urgent attention of the legislative branch of government, being the National Parliament.

27.	It should be observed that the orders set out below include an order designed to give effect to the Minister’s request that this issue be brought to the attention of the Parliament before the National Budget for 2026 is passed.

Orders

28.	For those reasons, the following orders are made:

1.	The Registry is to provide a copy of these reasons to the Minister for Correctional Services, by email, by 10am today, 20 November 2025.

2.	The Minister for Correctional Services is to provide a copy of these reasons to the Speaker of the National Parliament, by email by 4pm today, 20 November 2025.

3.	The Speaker of the National Parliament is requested to provide a copy of these reasons to each current Member of Parliament, by email by 4pm tomorrow, Friday 21 November 2025, so that the need for the repair and maintenance of the Baisu Correctional Facility is known to each such Member prior to the passing of the National Budget for 2026.

4.	The Court notes that it appears that a minimum of K5.6 million is needed to address the most urgent repair and maintenance needs at the Baisu Correctional Facility during 2026.

Orders Accordingly.