On 26 April 2016, the highest court in Papua New Guinea held that the detention of refugees and asylum seekers in its Australian-funded 'processing' centres was unconstitutional. This was based on Section 42 of the PNG Constitution which sets out a right to liberty. The unanimous, five member bench of the Supreme Court handed down a well-reasoned, persuasive judgement which drew upon international jurisprudence and UN material.
The Court specifically noted that the human rights and dignity of asylum seekers guaranteed by the relevant provisions of the PNG Constitution need to be respected. The judgement is therefore significant as it recognises that asylum seekers have a right to liberty like any other person.
However, whilst this decision is legally authoritative, what are the practical implications of this judgement for the continuing validity of Australia's offshore processing and detention centre on Manus Island?
In the days following the Supreme Court decision, the governments of PNG and Australia took contradictory positions on the response to be taken. Australian authorities issued strong statements against any change in domestic policy, arguing that the asylum seekers are the responsibility of PNG. In contrast, the Prime Minister of PNG, Peter O'Neill announced that his government would respect the court decision by closing the Manus centre, indicating that he would 'immediately ask the Australian Government to make alternative arrangements for the asylum seekers'.
Following high level secret meetings between the two governments, some compromise appears to have been reached with the announcement last week that the PNG authorities would 'open' the centre to allow freedom of movement of the detainees. The full details of the specific arrangements are yet to be released. However, media reports suggest that the detainees now have the option to catch one of three buses into the main town each morning if they sign agreements taking responsibility for their own safety. However, it appears that, as Manus is the site of a naval base, the asylum seekers are not simply allowed to walk out of the centre unaccompanied.
Whilst this may at first glance appear to be a way to meet the requirements of the PNG Supreme Court decision, the mere 'opening' of the centre may not be a legally sound, long-term solution. There are remaining legal questions about whether the arrangements are in line with the Supreme Court decision.
If there are still some restrictions on the movement of persons, it may be that the court would (upon a rehearing of the matter) view the asylum-seekers as still being deprived of their liberty. It could be argued that any such restrictions are contrary to the wide-ranging 'right to freedom' provision in Section 32 of the PNG Constitution. In applying this, the court would also be able to consider companion provisions in the Constitution which permit it to determine whether any restriction is disproportionate, harsh or oppressive. There are also broader concerns about the workability of such an 'open' arrangement, given that that existing tensions between detainees and locals may well be exacerbated by the opening up of the centre.
Apart from the legal ramifications of the PNG Court decision, the political responses by both governments illustrate some interesting issues about Australia's relationship with its nearest neighbour.
Last year, PNG celebrated 40 years of independence from Australian colonial rule. However, Australia continues to wield influence over the government through aid payments and the outsourcing to it of refugee processing and detention. The Australian government has specifically recognised that a stable and prosperous PNG is in Australia's interest. Yet, one could argue that Australia's response to the Supreme Court ruling does not fully reflect PNG's status as an independent nation, nor contribute to respect for the rule of law in the region.
Although the court decision is not technically binding on Australia (as we were not named as a party to the litigation), it could be argued that it is important as a regional leadership issue for Australia to display respect for the jurisprudence of the PNG Supreme Court. This is particularly so given that successive Australian governments have been concerned about political instability, corruption and weak governance in PNG. The fact that the Supreme Court of PNG is acting as an independent institution — upholding the rule of law and handing down authoritative, well-reasoned judgements — is something the Australian government should be applauding rather than ignoring.
Similarly, Australia has taken a strong leadership role in forming a 'Regional Cooperation Framework' in refugee matters as part of the South-East Asian Bali Process. Amongst other things, this states that refugees should be 'provided with a durable solution'. Unfortunately, the operation of the PNG processing regime has not yet resulted in any significant numbers of refugees being given a durable solution to their search for protection. Thus, the legal and political viability of the further continuation of Australia's 'offshore processing' policy in its current form may need to be amended in light of these pressing regional realities.
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