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PNG Supreme Court Rules Australian Detention Illegal

In explosive news this week, the Papua New Guinea Supreme Court has found that the Australian-funded detention of asylum seekers on PNG’s Manus Island province is unconstitutional.

The bench unanimously found that the prolonged detention of asylum seekers breaches the right to personal liberty found in s 42 of the PNG Constitution. The Supreme Court has henceforth ordered that the Australian and PNG governments take immediate steps to end the detention program.

The case was brought by PNG’s leader of the opposition Belden Namah, on behalf of 270 asylum seekers on Manus. The PNG government’s defence team was funded by the Australian government. Namah’s case was that the 2012 Memoranda of Understanding between Australia and PNG that set up the detention scheme was in breach of the constitution. By allowing Australia to transfer the men by force into PNG, and then allowing the PNG government to detain them on Manus, the scheme breached the constitutional rights to personal liberty and freedom of movement.

The decision has thrown a spanner in the works of the Australian government’s long beleaguered ‘Pacific Solution’. First introduced under the Howard government in 2001, the reintroduction of the ‘Pacific Solution’ under Prime Minister Julia Gillard in 2012 saw thousands of asylum seekers detained offshore on Nauru and Manus Island. It has also seen two men lose their lives on Manus under the care of the Australian taxpayer, alongside continuous reports of sexual assault, the ongoing harassment of gay asylum seekers, and multiple suicide and self-harm attempts.

There are some 850 men in the Manus Island detention centre, 481 of whom have been identified as refugees. Immigration officials in PNG are thought to be attempting to transfer some of the Manus refugees into a ‘transit centre’ to prepare for resettlement in PNG, as well as introducing policies like conditional day leave. However, the decision this week has thrown many of these plans into disarray. The Supreme Court has called for the immediate restoration of freedom of movement, both for those who have been recognised as refugees and those subject to so-called ‘negative determinations’.

In return for offloading its humanitarian responsibility onto these foreign governments, Australia has been paying significant sums of money to Nauru and PNG, including a range of multi-million-dollar development initiatives on both Manus and the mainland, amounting to some $450 million overall. Under the current deal, the PNG immigration department conducts refugee status assessments and the resettlement processes, while the detention centre is run by private contractors – including the Transfield corporation, on a $1.2 billion dollar contract – who are hired by the Australian government.

Public opinion in PNG towards the Australian-funded detention centre has not been positive. Many regard the asylum seeker issue as an Australian problem that has been exported to PNG, with PNG students protesting in 2013 that "PNG is not your dumping ground" and the Bishop of Port Moresby condemning the way that PNG had “become an accomplice in a very questionable handling of human tragedy”.

While PNG Prime Minister Peter O’Neill has previously attempted to evade the question of the illegality of the detention by making constitutional amendments to erode the right to liberty, he has already signalled that there are deep concerns about whether the continued operation of the detention centre is in PNG’s best interests. In addressing the National Press Club in Canberra in March, O’Neill declared that the centre should eventually be closed, stating that the controversy surrounding the centre has “done a lot more damage for Papua New Guinea than anything else” and that “we cannot hold the refugees there forever”.

The order to close Manus holds significant ramifications for the future of the 850 asylum seekers on the island. Whilst there has been some talk of suing the Australian government for compensation for unlawful imprisonment throughout the camp, the primary issue to consider is where the men will go if the facility is shut down. The 481 men who have been identified as refugees are eligible to be settled in PNG, although whether the PNG community will be at all receptive to absorbing 400+ largely Muslim men – and whether the asylum seekers themselves will accept resettlement in an often hostile environment – remains up for debate.

The same can be said for Australia’s alternative resettlement site of Cambodia, the product of a $55 million deal with the Cambodian government that has been so unpopular that only two asylum seekers have chosen to settle there permanently. Consequently, a daunting task lies ahead for the already overstretched PNG immigration department. Further resettlement demands are likely to be a big headache for a country that is already struggling to accommodate around 10,000 West Papuan refugees living within their borders. This difficulty will remain a prime concern for the PNG government, even if O’Neill ultimately chooses the Nauru route of turning Manus into an ‘open facility’, wherein the asylum seekers are effectively free to move around within the broader prison of the island itself.

Assuming that the PNG government abides by the court order, the O’Neill administration may have few options beside breaking the MOU with Australia. The Supreme Court ruling comes one day after the Supreme Court issued an interim injunction ordering a halt on the forced deportation of asylum seekers. While there is some doubt as to whether the immigration department will abide by this ruling, overall it seems unlikely that the remaining 400 could be deported back to their countries of origin.

Breaking the MOU will be a drastic step within the Australia-PNG relationship, and may well imperil the PNG economy. The aid budget from Australia to PNG for the 2015-2016 period stands at AUD $477 million, making PNG the largest single recipient of Australian aid. But with most of the financial incentives for entering into the MOU already sunk and his government currently plunged into a deep corruption crisis (with the recent arrest of his Attorney General and another arrest warrant floating over his own head) O’Neill may be tempted to wash his hands of the drama and send the responsibility back to Australia.

Australian Immigration Minister Peter Dutton has already firmly announced that the men will not be resettled in Australia, but it is unclear where else they can go – Australia’s other offshore facility of Nauru may be an option, but whether the tiny island has the capacity to take another 400 men is another question entirely. A return to Christmas Island may be in order. Whatever developments may follow, it is clear that the situation in Manus will be changing fast. In the words of Supreme Court Justice Kandakasi: “[i]n cases like the present, which involves the liberty of persons or other rights and the freedom of human beings, prompt action is required”.

Sally Andrews is the Indo Pacific Fellow at Young Australians in International Affairs.

This article can be republished with attribution under a Creative Commons Licence. Please email for more information.

Image: Manus Island Detention Centre, image credit: Greens MPs (Flickr: Creative Commons)

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