Frank Brennan. Cheque book solution on asylum is unconstitutional

Apr 27, 2016

A bench of five justices of the Supreme Court of Justice, the highest court in Papua New Guinea, has unanimously ruled that the detention of asylum seekers on Manus Island is unconstitutional.

The successful applicant in the case was Belden Norman Namah, the PNG Leader of the Opposition. Unlike the Australian Constitution, the PNG Constitution contains a list of basic human rights including section 42 which deals with ‘liberty of the person‘. That provision states that ‘No person will be deprived of his personal liberty‘ except in specific circumstances.

Back in 2001 when John Howard’s government instituted the first Pacific solution, there was only one exception which came even close to dealing with the deprivation of liberty of asylum seekers being brought to PNG and detained there. That was section 42(1)(g) which permitted deprivation of liberty ‘for the purpose of preventing unlawful entry’ into PNG.

But it was a long stretch of the bow to argue that this provision could cover the entry into PNG of persons brought there with the PNG government’s agreement on receipt of a cheque from Australia.

The Australian government and its lawyers have been on notice about this illegality for 14 years.

When the now grandfather of the House of Representatives Philip Ruddock was Minister for Immigration and Multicultural Affairs, he made a habit of criticising Australian judges whom he thought too soft on asylum seekers wanting to vindicate their legal rights in court.

At the same time, he had gone ahead instituting Australia’s first edition of the ‘Pacific Strategy’ for warehousing asylum seekers offshore. I wrote to him on 9 June 2002 saying:

‘Despite your recent adverse comments about the Australian judiciary, I note that you have not refuted my concerns about the legality of the Pacific Solution preferring simply to observe that no court proceedings have been instituted in Nauru and that the action in PNG was struck out for non-appearance of counsel on 6 May 2002.

‘I concede that the PNG government may well have issued conditional visas to the detainees on Manus Island but any visa with a condition amounting to detention would still be unconstitutional.’

Mr Ruddock replied on 22 August 2002:

‘I note your continuing concerns about the legality of the government’s Pacific Strategy. The constitutionality of the arrangements for accommodation of asylum seekers in Nauru and Papua New Guinea is a matter for the governments of the countries concerned.

‘It is relevant to note, however, that to the extent that the asylum seekers in those countries are subject to restrictions on their freedom of movement, those restrictions were imposed by the legislation of Nauru and Papua New Guinea respectively.’

Needless to say, the constitutionality of arrangements was not the province of the governments of Nauru and Papua New Guinea. The thing about constitutions is that they bind governments and even parliaments, and they are definitively interpreted not by governments but by courts. Legislative restrictions have to comply with constitutional constraints.

In 2003, I published the first edition of my book Tampering With Asylum. I wrote:

‘The detention of asylum seekers is contrary to the constitutions of Papua New Guinea and Nauru. Imagine if every first-world country decided to engage in this sort of unlawful people trading.’

After Kevin Rudd revived the Pacific Solution on 19 July 2013 and once Tony Abbott perfected it on his election as prime minister, the PNG government decided to amend its Constitution to try and legalise the detention second time around.

In 2014, the PNG parliament purported to amend the Constitution by adding a further exception to section 42, thereby permitting deprivation of liberty for the purpose of holding a foreign national under arrangements made by Papua New Guinea with another country’.

“Just because Australia does not have a constitutional bill of rights, that is no excuse for our governments exporting their cavalier disregard for human rights to our mendicant neighbours.”

Unlike the Australian Constitution, the PNG Constitution permits the parliament to amend the Constitution without the need for a referendum of the people. But the PNG Constitution does specify that amendments to the Constitution paring back constitutional rights can only be made subject to strict conditions in relation both to the content and form of the new law.

In relation to the content, a new restriction on an existing constitutional right can be legislated only if it is necessary to advance defence, public safety, public order, public welfare or public health, or if it is necessary to protect the rights of others, or if it is necessary to resolve a conflict of rights.

In all these cases, there is a need to establish that the proposed law ‘is reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind’. The proposed law legalising detention of asylum seekers sent from Australia did not get to first base according to the judges.

The judges, having quoted UNHCR’s adverse report on the Manus Island Processing Centre, agreed with the Leader of the Opposition’s contention

‘that 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 the various conventions on human rights at international law and under the PNG Constitution’.

In relation to the form of the new law, it needed to state the purpose for which it was made and to ‘specify the right or freedom that it regulates or restricts‘. The court ruled that the new law ‘did not specify the purpose of the amendment or the right which it purported to limit. On that ground alone the amendment is invalid and should be declared so.’

So the law aimed at legalising long term detention of the asylum seekers being held in the Manus Island Processing Centre was struck down. It’s unconstitutional.

Yet again, Australia has been complicit in its Pacific neighbours (PNG and Nauru) prostituting their Constitutions and undermining the rule of law in exchange for a fistful of dollars, with hapless asylum seekers, most of whom are ultimately proved to be refugees, being left to languish.

Just because Australia does not have a constitutional bill of rights, that is no excuse for our governments exporting their cavalier disregard for human rights to our mendicant neighbours. The PNG judges thought their legal reasoning would be even more compelling ‘if the conditions of detention are such as to damage the rights and dignity of the detainees or, worse, cause physical or mental suffering’.

“So the spiral of abuse continues until ultimately Australia convenes a royal commission to get to the bottom of our complicity in the abuse of asylum seekers and trashing of the rule of law in our region.”

These asylum seekers now have a claim for damages for wrongful detention. The PNG court has ordered that ‘both the Australian and Papua New Guinea governments shall forthwith take all steps necessary to cease and prevent the continued unconstitutional and illegal detention of the asylum seekers’.

No doubt we will hear unctuous pleas from Australian ministers that Australia was not even a party to the court proceedings. Our government was no more involved in the unconstitutional detention of these asylum seekers than was Channel 9 in the attempted abduction of the children in Lebanon last fortnight. So the spiral of abuse continues until ultimately Australia convenes a royal commission to get to the bottom of our complicity in the abuse of asylum seekers and trashing of the rule of law in our region.

Of course, Peter Dutton, the Australian Immigration Minister says these asylum seekers and proven refugees being detained on Manus Island ‘won’t be coming to Australia’. For months now he has been insisting that the 263 asylum seekers here in Australia awaiting return to Nauru after medical treatment must be sent for fear that their remaining in Australia might send a message to people smugglers.

That cry is starting to ring hollow. The boats have stopped, and they will stay stopped. And those 263 are still here.

Not only should those 263 be allowed to remain; those 850 held in detention on Manus Island should be brought to Australia under an agreement whereby they receive prompt processing and resettlement in exchange for their agreeing to drop their substantial damages claims for unlawful, unconstitutional detention in unconscionable conditions on Manus Island.

It’s time to close the Manus Island Processing Centre and to allow PNG to return to the rule of law. It’s better that Australia cut its losses now, rather than waiting for the inevitable royal commission which will lay bare the long term cost of what has been done in our name.

And have no fear, the boats will stay stopped provided only that our defence and intelligence services do their job in cooperation with Indonesian authorities.



Frank Brennan SJ is professor of law at Australian Catholic University and Adjunct Professor at the Australian Centre for Christianity and Culture. This article was first published in Eureka Street on 27 April 2016.

Footnote:  Incidentally, it’s worth noting that one of the main two judgements in the case was written by Justice Higgins, one time Chief Justice of the ACT.  The ACT has its own Human Rights Act, so His Honour is well familiar with the jurisprudence required to interpret the human rights provision in the PNG constitution.  John Menadue.


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