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Australia/Papua New Guinea: Supreme Court Rules Asylum-Seeker Detention Is Unconstitutional

(May 2, 2016) On April 26, 2016, the Papua New Guinea Supreme Court ruled that the detention of asylum seekers at a facility on Manus Island, Papua New Guinea, which was established under an arrangement with Australia, is a breach of their right to personal liberty under the Papua New Guinea Constitution. (Namah v Pato [2016] PJSC 13 (Apr. 26, 2016), PacLII website; Constitution of the Independent State of Papua New Guinea, s. 42, PacLII website.)


About 850 men from several countries are currently housed at the camp on Manus Island, with about half having recently been assessed as legitimate refugees.  (Erik Tlozek, PNG Government Say Refugee Assessments on Manus Island Have Been Completed, ABC NEWS (Apr. 7, 2016).)  Those assessed to be refugees are able to leave the camp during the day, but those who have had their claims denied are not able to exit.  (Ben Doherty et al., Papua New Guinea Court Rules Detention of Asylum Seekers on Manus Island Illegal, GUARDIAN (Apr. 26, 2016).)  Some men have refused to submit applications to the Papua New Guinea government on the grounds that they had been taken to the country against their will.  (Ben Doherty & Helen Davidson, Manus Detainees Told They Will Be Separated, Then Resettled or Repatriated, GUARDIAN (Mar. 29, 2016).)

The men had all sought to enter Australia by boat and were transported to Manus Island under Australia’s offshore processing policy aimed at deterring asylum seekers from using people smugglers to make the dangerous trip to Australia.  Under this policy, those who are assessed to be refugees are not  able to be resettled in Australia but are instead given the option of resettling in Papua New Guinea.  Thus far about 542 people have been offered resettlement in the country, including 74 who have now moved to a transit center.  Only eight people who were previously held at the detention facility are living in the Papua New Guinea community, including three who reportedly returned to Manus Island and tried to re-enter the transit center.  (Nicole Hasham & Michael Gordon, Papua New Guinea Court Finds Australia’s Detention of Asylum Seekers on Manus Island Is Illegal, SYDNEY MORNING HERALD (Apr. 26, 2016).)

The Manus Island Centre

The Manus Island Regional Processing Centre was first opened in 2001 under an agreement between the Australian and Papua New Guinean governments.  It closed in 2008 but was later reopened in 2012.  (Elibritt Karlsen, Australia’s Offshore Processing of Asylum Seekers in Nauru and PNG: A Quick Guide to the Statistics, Australian Parliamentary Library website (Oct. 12, 2015).)  In 2013, the two countries signed a new agreement related to the processing and resettlement of asylum seekers.  (Regional Resettlement Arrangement Between Australia and Papua New Guinea (July 19, 2013); Memorandum of Understanding between the Government of the Independent State of Papua New Guinea and the Government of Australia, Relating to the Transfer to, and Assessment and Settlement in, Papua New Guinea of Certain Persons, and Related Issues (Aug. 6, 2013), both from the Australian Department of Foreign Affairs and Trade website.)

Supreme Court Ruling

The Papua New Guinea Supreme Court found that

The power to detain and therefore deprive a person’s liberty pursuant to s. 42(1)(g) legally and constitutionally is only in accordance with that provision and the relevant provisions of the Migration Act. That is available only against persons who have entered and or remain in the country without a valid entry permit or an exemption. Any deprivation of a person’s liberty outside what is provided for will undoubtedly be unconstitutional and illegal.

In the present case, the undisputed facts clearly reveal that the asylum seekers had no intention of entering and remaining in PNG. Their destination was and continues to be Australia. They did not enter PNG and do not remain in PNG on their own accord. This is confirmed by the very fact of their forceful transfer and continued detention on MIPC by the PNG and Australian governments. It was the joint efforts of the Australian and PNG governments that has seen the asylum seekers brought into PNG and kept at the MIPC against their will. This [sic] arrangements were outside the Constitutional and legal framework in PNG. (Namah v Pato, paras 38-39.)

The Court also held that a 2014 amendment to the Constitution, which purported to allow the detention of foreign nationals pursuant to an agreement with another country, was unconstitutional and illegal.  It ordered that the Australian and Papua New Guinean governments take steps to end the continued detention of asylum seekers.  (Id. ¶ 74.)

Government Responses to the Decision

On the same day that the Court’s decision was released, Australia’s immigration minister, Peter Dutton, reiterated that “[n]o one who attempts to travel to Australia illegally by boat will settle in Australia” and that “[t]hose in the Manus Island Regional Processing Centre found to be refugees are able to resettle in Papua New Guinea. Those found not to be refugees should return to their country of origin.” (Press Release, Peter Dutton MP, PNG Supreme Court Judgement (Apr. 26, 2016).)  He further stated, “[t]he court decision is binding on the PNG government, but not on the Australian government, so we will work with the PNG government to look at the situation, to provide what assistance we can, but we are not going to allow people smugglers to get back into business.”  (Helen Davidson & Ben Doherty, Manus Island Detention Centre to Close, Papua New Guinea Prime Minister Says, GUARDIAN (Apr. 27, 2016).)

A few hours later, the Prime Minister of Papua New Guinea, Peter O’Neill, said that the facility on Manus Island will be closed and that “Papua New Guinea will immediately ask the Australian government to make alternative arrangements for the asylum seekers” currently held there.  (Id.)  In response, Dutton said that Australia would continue discussions with Papua New Guinea to resolve the issues, again stating that the detainees would not be resettled in Australia.  (Id.; Nicole Hasham, Manus Island Detention Centre to Close, PNG Prime Minister Says Following Court Bombshell, SYDNEY MORNING HERALD (Apr. 28, 2016).)