SPENCER ZIFCAK. PNG Supreme Court Trumps Detention on Manus Island and Australia’s High Court too. It is regrettable that Australia does not have a similar Bill of Human Rights

May 21, 2016

In the latest legal saga to beset the Government’s troubled offshore processing program, the Supreme Court of Papua New Guinea declared that the mandatory detention of asylum seekers from Australia on Manus Island was unconstitutional. The Court held that the detention of some 900 men on Manus violated the right to liberty guaranteed by PNG’s Constitution.

A closer look at the decision discloses just how far the Australian and PNG governments have been prepared to go in conspiring to keep asylum seekers, travelling by boat to Australia, out of the country and incarcerated indefinitely offshore.

Section 42(1) of the PNG Constitution provided that ‘No person shall be deprived of his personal liberty.’ It was one of several provisions that make up the nation’s constitutional Bill of Rights. The Constitution also provided, however, that there are qualifications to the grant of the right. Relevantly, a person’s liberty could be deprived for the purpose of preventing him or her from unlawful entry into PNG, or for the purpose of a person’s lawful expulsion or removal from the country.

The tight limits of this exception, however, presented PNG and Australia with a problem. The entry of Australia’s asylum seekers to PNG was not unlawful. It occurred pursuant to a Memorandum of Understanding (MOU) between the two nations. To give effect to that MOU, PNG’s Minister for Immigration had used an extraordinary provision in the PNG Migration Act 1978. This provided that the Minister may, in his or her absolute discretion, exempt a person from all or any provisions of the Act (so much for the rule of law).

Consequently, the Minister issued a Direction exempting asylum seekers from Australia from the operation of the Migration Act. They would be permitted to enter PNG and were then required to reside at a ‘relocation centre’ on Manus Island for the purpose of determining their refugee status.

However, a constitutional problem remained. As noted previously, the Constitution’s right to liberty could be sacrificed in only two circumstances – if the restriction was for the purpose of preventing the unlawful entry of a person, or for effecting a person’s lawful removal. The Minister’s attempt to legalise the asylum seekers’ detention for the purpose of processing their refugee claims fitted neither qualification.

So, the Australian and PNG governments decided that the PNG Constitution needed to be changed to give authoritative legal effect to the MOU. An agreed amendment, therefore, established a third qualification to the right to liberty. An exception was created ‘for the purpose of holding a foreign national under arrangements made by PNG with another country…that the Minister responsible for immigration matters, in his absolute discretion, approves.’ The restriction thereby imposed upon individual liberty was substantial.

In cases where fundamental human rights were proposed to be limited, however, the Constitution contained additional protections. First, an amendment qualifying a right had to specify the right being restricted and the purpose of the restriction. Secondly, the limit on the right had to be one that was in the public interest and demonstrably justifiable in a free and democratic society.

The Court struck down the amendment. This was because it had not specified the right to be restricted i.e. the right to liberty. Far more significantly, it held that the amendment was not in the public interest and could not be demonstrably justified. This was because the amendment had the effect of treating the people required to remain in detention as prisoners, irrespective of their circumstances or their status, save as asylum seekers. Further, the Court determined that the conditions of detention were such as to damage the rights and dignity of the detainees, or worse, to cause them physical or mental suffering. The asylum seekers’ constitutional right to liberty could not be violated in such circumstances.

PNG’s Bill of Rights had come to the rescue of the detainees. No such constitutional protection of rights exists in Australia. That provides an interesting point of comparison with the Australian High Court’s recent decision with respect to the legality of asylum seekers’ imprisonment on Nauru.

In Plaintiff M68 v Minister of Immigration and Border Protection 2016, the High Court was asked to determine whether the Commonwealth Government’s involvement in the detention of a female asylum seeker on the island of Nauru was authorized by statute. By a 6:1 majority, the Court held that it was.

Absent a right to liberty in Australia’s Constitution, it was always going to be a hard ask for the Court to do otherwise. Nevertheless, there are certain features of the Court’s decision that deserve close scrutiny.

The first and most remarkable of these was that the Court accepted an argument that the asylum seekers were detained by Nauru and not by Australia. This was a legal fiction, albeit a tenable one. Once the asylum seekers were taken to Nauru (against their will) they left Australia’s legal jurisdiction and entered Nauru’s. From that point onwards, Nauruan law applied. And Nauruan law provided for the detention. The Commonwealth, the Court concluded, could not compel or authorize Nauru to make the laws that required the asylum seeker to be detained.

The reality, however, was completely different. Pursuant to the MOU, the Australian Government directed almost every aspect of the detention and refugee determination regime.

The Commonwealth paid for every part of the transfer and detention system. It was the Commonwealth, and not the asylum seeker, that applied for a ‘regional processing centre visa’. The Commonwealth was aware that it was a condition of that visa that the person would be detained at the centre. The Commonwealth contracted with Transfield to operate the centre. It was a condition of that contract that the Commonwealth could terminate the contract with Transfield at its discretion and then assume responsibility for the centre’s operation. The Commonwealth authorized Transfield to exercise force in the centre to maintain the security of its perimeter. In other words, the Commonwealth bore full responsibility for the asylum seekers’ incarceration on the island.

As Justice Michelle Gordon expressed the matter in dissent:

“the detention had been funded, authorized, caused, procured and effectively controlled by, and was at the will of, the Commonwealth…The Commonwealth detained the Plaintiff on Nauru”.

The High Court majority went on to qualify its conclusion a little by saying that the Commonwealth Government could participate in the operation of the detention regime on Nauru only if the purpose of doing so was to facilitate the processing of the asylum seekers’ refugee claims. But this again skirted the reality.

That reality is that offshore detention is only incidentally designed to further the determination of refugee claims. As the actions of governments of both political persuasions have made abundantly clear, the primary purpose of offshore detention is deterrence. Its intention is punitive not administrative. That is why asylum seekers have languished, incarcerated on Nauru and Manus in appalling conditions for years.

Interestingly, the Nauruan Constitution also contains a right to liberty. The High Court, however, refrained from examining whether or not the Nauruan Government had acted unconstitutionally by restricting this right. It said that:

“Whilst there might be some occasions when an Australian court must come to some conclusion about the legality of the conduct of a foreign country…because it is necessary to the determination of a particular issue in the case, these occasions will be rare. This is not such a case.”

It offered no reason why.

Would it have made a difference if the Australian Constitution contained a right to liberty? Clearly it would. The consequence for individual liberty of Australia’s entry into the MOU with Nauru would have been clear. The argument that Australia bore no legal responsibility for detention on the island and its harmful consequences, therefore, would have been far more difficult to make. Further, Australia’s controlling participation in the detention regime could not have been authorized by statute because to do so would have violated the constitutional right.

It is worth noting that Australia was in part responsible for the inclusion of the Bill of Rights in PNG’s Constitution. It is regrettable that neither then nor since have governments here thought it desirable to enact one of our own.

Spencer Zifcak is Allan Myers Professor of Law at the Australian Catholic University and Immediate Past President of Liberty Victoria










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