The implications of the Papua New Guinea Supreme Court decision

By Maria O’Sullivan

The highest court in Papua New Guinea has, in a unanimous decision, found that detention of refugees and asylum seekers in its Australian-funded ‘processing’ centres is unconstitutional. Although the Supreme Court decision is not directly enforceable under Australian law, it will have significant legal and political implications for the continuing operation of Australia’s offshore processing centres.

The Constitutional Provisions

The constitutional provision central to the case is Section 42 of the PNG Constitution. This provides that ‘No person shall be deprived of his personal liberty’, except in defined, limited circumstances. Section 42(g) provides that one of the exceptions to the right to liberty is where this is ‘for the purpose of preventing the unlawful entry of a person into Papua New Guinea, or for the purpose of effecting the expulsion, extradition or other lawful removal of a person from Papua New Guinea, or the taking of proceedings for any of those purposes’. The fact that the provision refers to ‘unlawful entry’ was pivotal to the case as in fact Australian ‘transferees’ are brought to PNG as lawful entrants. Therefore the applicant argued that they do not come within the scope of the exception in Section 42(g).

In 2014, in response to the commencement of the Supreme Court litigation in question, the PNG Parliament amended Section 42 to attempt to validate the detention of asylum seekers under the arrangement with Australia. Thus, from 2014 onwards, new Section 42(ga) provided that deprivation of liberty was permitted:

“for the purposes of holding a foreign national under arrangements made by Papua New Guinea with another country or with an international organisation that the Minister responsible for immigration matters, in his absolute discretion, approves.”

Importantly, Section 38 of the PNG Constitution also provides that a law which regulates or restricts a right must be ‘reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind’. No such principle exists in the Australian Constitution.

The Court Decision

The five member bench of the Supreme Court of PNG found the detention of asylum seekers and recognised refugees in the processing centres was unconstitutional for a number of reasons. Firstly, the power to pursuant to section 42(g) of the PNG Constitution is only available against persons who have entered or remain in the country without a valid entry permit. In the present case the asylum seekers did not enter PNG or remain there of their own accord. In fact they were forcibly transferred and detained on Manus Island by the PNG and Australian governments (judgment para 38-39).

It also considered the 2014 Amendment to the Constitution to be unlawful, specifically stating that the ‘human rights and dignity of the detainees or asylum seekers which are guaranteed by the relevant provisions of the [PNG] Constitution need to be respected’. The court underlined that the treatment of the transferees was not ‘reasonably justifiable in a democratic society having a proper respect the rights and dignity of mankind’ pursuant to Section 38 of the Constitution. Significantly the court considered broader material than PNG law in coming to this conclusion, including UNHCR Detention Guidelines, the 1951 Refugee Convention and a damning report of the UNHCR published on the Manus Island processing centre in 2013.

This judgement is therefore important for recognising that asylum seekers have a right to liberty like any other person in PNG. It is also illustrative of the power of having a Bill of Rights in a domestic constitution and a court willing to interpret that to protect asylum seekers as human beings entitled to human rights (not merely as ‘noncitizens’ or ‘illegals’ which is the prism through which Australian authorities view asylum seekers).

Legal and Political Implications

To date, the Australian government has not indicated any change in policy in response to the PNG court decision. Indeed, Minister for Immigration Peter Dutton stated yesterday that the decision ‘does not alter Australia’s border protection policies – they remain unchanged’.

However, this is neither legally nor politically feasible given the implications of the PNG Supreme Court decision. These are as follows. Firstly, Clause 5 of the Memorandum of Understanding (MOU) signed between PNG and Australia in August 2013 clearly states that ‘The Government of Papua New Guinea will conduct all activities in respect of this MOU in accordance with its Constitution and all relevant domestic laws.’ This Memorandum underpins the entire ‘regional arrangement’ with PNG for transfer of asylum seekers which is linked to Australian legislation. For instance s 198AHA of the Australian Migration Act provides that ‘this section applies if the Commonwealth enters into an arrangement with a person or body in relation to the regional processing functions of a country.’ The purpose of the MOU is to give effect to the scheme set out in the Migration Act, by ensuring that PNG is willing and able to perform the functions of a regional processing country. This legal issue was in fact referred to by the High Court in relation to Nauru in the recent decision of Plaintiff M68 where it noted that ‘it is essential to the scheme for the removal of aliens to a regional processing country … that that country not only be willing but also have the practical ability to do so (para 45, per French CJ, Kiefel and Nettle JJ). The importance of the MOU to the broader legality of regional processing is also illustrated by the fact that a copy must be laid before Parliament under s 198AC(2)(c) of the Migration Act.

Thus, if the Australia-PNG Memorandum of Understanding is rendered invalid due to the decision of the PNG Supreme Court, this places into doubt whether the Australian Government is authorised under its own legislation to transfer persons to the offshore detention centre.

Secondly if the detention of transferees in PNG is unlawful, presumably all asylum seekers and refugees will have to be taken out of detention centres and placed within the community. This may in fact present great dangers to released persons as there is significant evidence of tension within the PNG community towards asylum seekers and refugees and instances of threats and harm. There is a strong argument that Australia would be legally responsible for such harm. The light of these facts I believe there is no other choice than for the Australian government changed its position and transfer all asylum seekers and refugees to Australia.

In addition to its implications for the offshore processing centre in PNG, the decision is in stark contrast the approach taken by the High Court of Australia to immigration detention. In one of its most controversial judgements, the High Court held in 2004 in the case of Al Kateb that mandatory indefinite detention was lawful under Australian law. Since then it has not overruled that case. In contrast, the inclusion of human rights provisions within the PNG Constitution has allowed its Supreme Court to consider whether detention of asylum seekers is reasonably justifiable in light of the rights and dignity of mankind. Such an approach is to be commended.

Politically, the litigation has implications for both PNG and Australia. The Supreme Court litigation was commenced not by a plaintiff representative from the detention centre, but the then leader of the Opposition, Member of Parliament Belden Namah. This is illustrative of a broader unease amongst PNG politicians about the validity of the offshore detention centre. The PNG decision also represents a reprimand to Australia in that it seeks not only to adjudicate upon PNG law, but also seeks to influence Australian executive power by ordering the Australian government to ‘take all steps necessary to cease and prevent’ the detention of asylum seekers and refugees on Manus Island.

In contrast, when the plaintiffs in the recent Australian High Court challenge to Nauru in Plaintiff M68 asked the court to consider the validity of that detention under Nauruan law, the High Court refused to step into the realm of considering the legality of another country. It stated:

‘whilst there may be some occasions when an Australian court must come to some conclusion about the legality of the conduct of a foreign government or persons through whom such a government has acted, because it is necessary to the determination of a particular issue in the case, those occasions will be rare. This is not such an occasion’ (para 48).

The fact that the PNG Supreme Court has ordered Australia to act is therefore a serious jurisprudential step and must be taken seriously.

Putting aside the legal implications of this decision, this latest development is just one more piece of evidence that Australia is neither politically nor legally able to simply ‘outsource’ its refugee protection obligations to third countries. It will also contribute to growing community unease about the humanity of offshore processing, as evidenced by the groundswell of public opinion behind the #Letthemstay campaign, the concerns of the medical community and the offer of sanctuary by 190 churches within Australia.

It is therefore now time that the offshore processing centres were closed.

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