The order to close the Manus Island detention centre was entirely predictable.

On any reading of PNG’s constitution, it is clear that detention without trial of people who were accused of no crime, and who’d been forced to PNG against their will, was illegal.

And, as the PNG and Australian governments offered no real defence for the regime – save for an almost-laughable attempt to insist the men on Manus were “not in detention” – the supreme court’s decision was the only one it could credibly arrive at.

Manus Island detention centre must, it ordered, be closed down.

The unknown is what happens next, and there appears to be few viable options.

Both the Australian and PNG governments – the court judgment also punctured the legal fiction that Australia is somehow not involved in running the detention centre – saw this judgment coming.

The regime was clearly illegal, so attempts were made in 2014 to retrofit the PNG constitution to allow it, with the addition of section 42(1)(ga), affecting the liberty of the person. This was thrown out by the court.

The next tactic was simply to delay. The government refused to agree to facts or respond to court orders, sailing dangerously close to contempt.

Detention centre manager Broadspectrum’s proposal earlier this week to recast Manus Island as an “open” detention centre was clearly designed to circumvent the impending decision, and give credibility to an argument that the 850 men held on Manus were not detained.

Nauru was transitioned to an “open centre” in October, ahead of the M68 court case in the Australian high court, as demonstration that people there were no longer incarcerated (ultimately, the distinction wasn’t needed, the high court ruled that offshore detention was within Australia’s power).

But such a transition won’t be as easy on Manus. The detention centre there is housed within the massive Lombrum base of the PNG navy. The men who are allowed out of Manus (only those found to be refugees, not those still contesting their claim or who have been rejected) will not be able to leave of their own volition.

They will only be allowed to be driven out of the camp on chartered buses, only between certain hours of the day, and only if they sign papers agreeing to strict conditions. They will still be forced to live behind the high steel fences, under guard.

It is hardly freedom.

Broadspectrum can throw open the gates of the detention centre, but if no one is allowed to walk out of them, it is a futile act.

The PNG and Australian governments have also been trying to encourage more and more men to agree to move to the East Lorengau Refugee Transit Centre, purpose-built at a cost of $137m to house up to 290 refugees.

But the transit centre cannot accommodate the number of men currently in detention, and finding more space on Manus – an island where almost every inch of land is tightly held by family groups – is a near impossibility, beyond which the expense of building yet more accommodation would be prohibitive.

A further step would be to try to resettle the men elsewhere in PNG. Resettlement so far has been an unmitigated disaster.

Only a handful of men have been resettled, mainly in Lae, and many report having been assaulted, robbed, left homeless, arrested, or forced to sell what little they own to survive.

At least six have made their own way back to Manus – some tried to break back into detention – because they have not felt safe living outside in PNG.



Politically, too, there is resistance to large-scale resettlement in PNG. Its prime minister, Peter O’Neill, has said publicly his country cannot, and will not, resettle all the men on Manus. He, too, wants the detention centre shut, saying it was a “problem” inherited from his predecessor that has “done a lot more damage than probably anything else”.

Some in PNG have speculated that the men of Manus might be moved to Nauru. The Nauru detention centre is currently experiencing one of its most desperate periods, with widespread acts of self-harm and suicide attempts. The detention centre, and that entire country, are in no position to accept a further 800 refugees and asylum seekers (a figure that would add about 10% to Nauru’s entire population).

Australia’s final card is that of third-country resettlement. Again, so far, this has been a costly and unquestionable failure.

Cambodia agreed to accept refugees in exchange for $40m in additional aid, plus up to $15m in resettlement costs. In 19 months, the program has resettled just two people. Five refugees went to the country, but three then left.

However, the full measure of that $40m in Australian taxpayer dollars will still go to Hun Sen’s government, which, realising it held the upper hand over a desperate Australia, proved a shrewd and ruthless negotiator.

Australia maintains it is in negotiations with several other countries over new third-country deals, but is chary of saying which, fearful perhaps of another public rebuke like the one it got from the Philippines, who hastily rebuffed Australian suggestions it would take the refugees.

Inside government, there is diminishing hope a viable third country can be found.

In a world where the demand for refugee resettlement places is so overwhelming and so critical, resettling a comparatively small number of refugees already in the “care” (certainly custody) of a wealthy, industrialised nation, is a low priority.

The Australian government maintains it will refuse to allow any of the men to be returned to Australia, even if the PNG supreme court orders the PNG government to send them back to Australian territory.

So where to from here?

The court order was entirely predictable. The next step is anything but.