Australia’s asylum seeker detention and processing centre at Manus Island, PNG was ruled to be unconstitutional and illegal by the Papua New Guinea Supreme Court on Tuesday 26 April 2016. The detention centre has been in operation since 2012 after successive Memoranda of Understanding between the Australian and PNG governments in 2012 and 2013.
For those who have long advocated against the arrangement, the decision is a great relief. For others, the decision raises serious concerns about the future of the asylum seekers and Australia’s policy in dealing with this issue.
This article attempts to address the legal issues dealt with by the Supreme Court and the implications of the judgment for both Papua New Guinea and Australia.
History of the case and the legal question
Former Opposition Leader Mr Belden Namah initiated this case in his capacity as the Opposition Leader in 2013. The Supreme Court granted him ‘standing’ to pursue the case. Although he was later removed as the Opposition Leader, the case was allowed to continue as it was already on foot.
The main issue was whether the arrangement to detain the asylum seekers against their will was in accordance with the PNG Constitution. Namah argued that it was unconstitutional under section 42 of the PNG Constitution. Section 42 is a human rights provision that prohibits a person from being deprived of his or her ‘personal liberty’ arbitrarily except through established legal means such as when arrested and detained for criminal charges.
The government argued that the arrangement was legal because it falls under an exception provided for in Section 42(1)(ga) of the Constitution. That provision allows a ‘foreign national’ to be deprived of his personal liberty ‘under arrangements made by Papua New Guinea with another country or with an international organisation that the (Foreign) Minister responsible for immigration matters, in his absolute discretion, approves.’ Ironically, this provision was only inserted into the Constitution in 2013. It appears to have been an attempt to “seal” the detention centre arrangement between Australia and PNG.
Supreme Court’s judgement
The Supreme Court found that the amendments made to the Constitution to accommodate the arrangement were not within the spirit of the Constitution. Unlike Australia, PNG has a bill of rights enshrined in its Constitution and the courts have always aspired to guard it against any intrusion. This is evident in the judgement:
Treating those required to remain in the relocation centre as prisoners irrespective of their circumstances or their status save only as asylum seekers, is to offend against their rights and freedoms as guaranteed by various conventions on human rights at international law and under the PNG Constitution. (per Justice Kandakasi)
The Court also found that there were irregularities in how debates on the laws in question were carried out in the PNG Parliament. The Court made similar observations last year when it overturned the constitutional amendments passed by the O’Neill-Dion government to extend the vote of no-confidence period. It appears to be a concern that successive governments have used their numerical strength to passed legislation of national importance without proper debates on the merits of such laws.
Implications for PNG and Australia
The effect of this decision is that the detention centre will be closed. Financially, Australia may withdraw the monetary package associated with the arrangement leaving PNG at some potential loss. But PNG gains much from this decision as it shows that regional partnership and aid incentives should not undermine the country’s sovereignty. It also shows that the PNG justice system and its human rights regime are resilient.
This is the second time an Australia-PNG arrangement has been ruled unconstitutional. The first was the Enhanced Co-operation Program (ECP) Case in 2005 where the Supreme Court declared the Papua New Guinea and Australia Act 2004 to be unconstitutional for giving immunity to Australian Federal Police officers working in PNG from prosecution under PNG laws. In the ECP case, the Court was also concerned about the conduct of the executive arms of both governments.
These cases have significant implications for the constitutional development of PNG. They demonstrate a dominant executive that may need to be curtailed. While these cases are not binding on Australia, they should raise legitimate questions as to the degree of consciousness in the Australia-PNG bilateral relations. As an established democracy, the region expects Australia to champion the cause of human rights, rule of law and have absolute respect for the sovereignty of independent states.
The ultimate question now is where the asylum seekers at Manus will be settled if not PNG. The decision may also affect discussions on whether Pacific island states will continue their dialogue with Australia on a regional resettlement agreement. For now, the Manus Island case is sure to etch its place as part of a contentious period in PNG-Australia relations.
Bal Kama is a PhD Candidate in the ANU College of Law at The Australian National University.
Hi there, Mr. Kama. I have a question regarding your blog. The question is, can PNG or any other country refer Australia to the International Court of Justice for denying the human rights of asylum seekers on Manus Island?
Werner, John and Gerard, you all touched on the different aspects of the issue i.e. international law, respect for sovereignty and the economic and environmental effect from the detention centre. We hope future discussion on asylum seekers detention centres in the region will take account of these aspects.
Yes, decision has been made in as far as the laws are concern….however, PNG being part of the global community we all share the pain and suffering these stateless people have traveled million miles in difficult waters and maybe as human person…as said by great singer Dube, one people different color should be considered lot more seriously.
I have suffered lot more seriously because of this very issue ” ILLEGAL DETENTION CENTRE” on Manus Island in a bigger way. ASSUMING ALL WAS WELL IN TERMS OF LAW with the involvement of PNG Government and Australia, new of spin off benefit was a public gossip in all parts of Lorengau and Manus as a whole. I spare no time acquire a near one (1) million kina loan from NDB and constructed a 3 level Hotel and the pain and of suffering because of this illegal centre is a night mare to those of us tried to reap the benefit….but who can assist to fight the financial power (Government of Australia & PNG) if seeking justice…
Ken Kuso
Werner, John and Gerard, you all touched on the different aspects of the issue i.e. international law, respect for sovereignty and the economic and environmental effect from the detention centre. We hope future discussion on asylum seekers detention centres in the region will take account of these aspects.
Bal
One thing is certain, one would have thought that refugees in the asylum agenda would be of the ‘tarangu’ group; torn, broken hearted, humiliated and dis-spirited. I have witnessed on two (2) separate occasions the asylum seekers on my island as being people walking around with wallets full of money and a free joy ride on the island!! So who is the ‘tarangu’ here, the foreigner or my own lay back peaceful island people who have suddently become subjected to heavily inflated goods and services?
Secondly, in my recent visit in April to Manus, i noticed one fact the Australian government can not ignore. The unnecessary expenditure on fuel alone! Empty 25 sitter buses, loading trucks, police van and the lot who keep driving up and down bumper to bumper to and from Lombrum – Lorengau with absolutely no coordination. This is certainly cause for concern when it comes to unnecessary fuel burning in a confined area.
Now either the funding authority is ignorant, the middle man too clever or both! The supreme court decision came exactly 2 weeks following my open assumption and illustrating to my local people that the fuel costs on Manus island alone would determine stiff decisions on the future of asylum seeking on the island, seems I wasn’t wrong by a big margin.
Even if this was ignored by both the PNG and Australian governments, a simple tax payer in Australia would raise some concern.
Gerard
The interplay of politics either it was correctly done or just an injudicious arrangement between Australian and PNG to process the asylum seekers in Manus Island has a lot to be decided within the two countries. The big winners are the legal consultants who worked in framing the arrangements to reach the MOA, walking away with huge bucks. They should have also provided the counterproductive legal opinions of such arrangement (maybe it was done) relating to the national and international laws on human rights.
Few observations here as far as regional politics and security of the Pacific region is concerned.
• Australia is seen as big brother among the small Pacific Island nations as well as the south east Asian neighbour countries. In the event of situation that concerns regional politics and security, Australian has to play bigger and better within the confines of national sovereignties and territorial integrities. Also with respect to international laws and commitments.
• Even the small island countries needs to open up to the influences of regional politics and security with respect to their national foundation, commitment to regional and international aspects and minimise as much as possible territorial and sovereignty backlash that will affect others in a Pacific global village.
• Issues that concern regional politics or security like the recent case for asylum seekers that Australia is addressing through Nauru and PNG, it should better be debated and addressed through regional groups like the MSG, PIF or create a new one purposely for such issue, including countries in south east Asia like Indonesia and Malaysia will serve a lot. The UNHCR would be happy to support such approach.
Viva, PNG Constitution…
My thought on this is that while the world descends into one world diplomacy due to the gradual rise of regionalism (among other factors), state’s sovereignty is becoming a myth in international politics. Territorial sovereignty (one of the elements of state as a political being) can never be debated nor defend a state. It will be and always be the Constitution. The approach taken to amend our Constitution without care and consideration is a grave concern. The Constitution-makers have taken years to put together the Constitution but today it has taken months (two at the most) to make amendments and put new laws. I am counting on more lawyers turn MPs in 2017.
Bal,
Could it be argued that it is not a case of the executive, nor indeed the judiciary, being too strong, but of provisions surrounding constitutional change being not strong or clear enough?
In the above scenario, we have a government who has made a constitutional change which was valid according to the procedural elements of the PNG legal system. It would seem more appropriate to revise the procedures for constitutional change, rather than ask the SC to make a (unavoidably political) decision about whether despite procedural coherence, the change was unacceptable on other less concrete grounds.
Hi Jess, thank you for a raising a very important question about the process of constitutional change. Sections 13-15 of the Constitution set out the process. It authorizes the Parliament to make amendments after a two months notice (first reading). This is obviously different to Australia given its process of referendum. The drafters of the PNG Constitution assumed that PNG political leaders would act responsibly when it comes to constitutional amendments. But it appears to be a challenge. So far, PNG has made forty-three amendments over the last forty years of Independence – a high rate compared to many democracies. So your point is vital i.e. the process of constitutional amendment will have to be looked at.
With the current arrangement, the court have found over the years that parliamentary standing orders and opportunity for critical debate are often suppressed due to a majority government and a Speaker that often sides with the government (the Speaker is appointed by the government). Apparent abuses in parliament are non-justiciable but the Courts have take judicial notice of it through Hansard evidence, media etc.
The courts in PNG are required to be ‘open, liberal’ and to be politically conscious. They are not to be removed from political realities, but to look beyond the letter of the law to see the politics behind it. For them, a dominant executive against a declining legislature is a cause for concern. Those concerns are taken into account when dealing with issues of constitutionality of amendments and legislation.
So Courts in PNG do take an interest to do justice, and not to allow mere processes and procedure get in the way. Some may accuse them of making political decisions but in essence, these are issues of justice coated in politics so courts will have to take a direct interest when brought to its attention.