Quick Thought: PNG Supreme Court rejects Asylum Seeker detention

Tuesday’s PNG Supreme Court ruling has made explicit the self-evident fact that Australia’s Manus Island Processing Centre (MIPC) is violating the liberty of its over nine hundred resident asylum seekers.

The Court has determined the MIPC and its detention of asylum seekers to be unconstitutional and illegal.

From the safety of our sunburnt shores, the Manus facility appeared to work. Those risking the high seas to seek asylum in Australia have been routinely sent to Manus Island or Nauru under both Labor and Liberal governments.

But, because PNG’s Constitution guarantees liberty to the detainees under Section 42, the MIPC has been sitting on constitutional quicksand from the start.

When Australia proposed the detention center with incentives, the PNG Government grabbed for the cash and the price of human dignity became arbitrary to both government’s calculations.

Tuesday’s judgment is a remarkable account of the PNG government’s listless attempt to make the forceful transfer and continued detention of asylum seekers wash favourably with their Constitution.

After signing the enacting memorandum of agreement with Australia in 2012, PNG’s task was twofold — to dodge their Constitution’s statement of rights and detain incoming asylum seekers using legitimate government powers.

The most pressing hurdle became Section 42 and the Foreign Minister ushered the distressed asylum seekers into PNG by misunderstanding Section 20 of the Migration Act.

The Government’s attempt to amend in an asylum seeker exception to Section 42 liberty was invalidated by the Court.

“It is clear the 2014 Amendment was inserted without any proper consideration or thought.”

In fact, Justice Kandakasi went further and showed that the Amendment Law was so poorly executed that, despite passing with a two-thirds majority in Parliament, it lacked the required accompanying legislation to pave the way for its enforceability.

Crucially, the Court was met with silence where the Government had the burden to show the Amendment was “reasonably justifiable in a democratic society having proper respect for the rights and dignity of mankind” - a difficult argument to make for the forceful detention of asylum seekers.

The treatment of detainees on Manus Island has been difficult to reconcile with both Australia and Papua New Guinea’s obligations as signatories to the UN 1951 Convention Relating to the Status of Refugees and the accompanying 1967 Refugee Protocol.

And the Court says that PNG cannot excuse itself from acting consistently with these international obligations.

It is not unfair to ask why the PNG Supreme Court has been able to do what Australia’s High Court has not — recognise the rights and freedoms of asylum seekers.

The ruling exposes a hole in the Australian Constitution. It has no positive statement of individual rights, even for its own citizens, and therefore no Section 42 protection of individual liberty. Instead, the Constitution only tells us who falls under which government power.

This is why comparable cases heard by the High Court often boil down to whether an individual falls within the ambit of a specific power. In the case of asylum seekers, the Australian government relies on Section 51 Alien and Immigration powers to implement policies like offshore processing.

Once in the cross-hairs of these widely defined powers, there is very little restriction upon the legislative scope of what the government can do to an individual. Australia’s detention of asylum seekers in such inhumane conditions is a powerful demonstration of this legislative freedom.

The PNG government has already responded to the judgment by announcing the MIPC’s closure and the soon-to-be displaced detainees will likely bring Australia’s asylum seeker policy back into the political fold as the Australian government is now left without a working offshore policy.