The Supreme Court of Papua New Guinea (‘PNG’) handed down a ground-breaking judgment last Tuesday that is likely to have a far-reaching impact on Australia’s current offshore processing policies (which I discussed earlier on Leiden Law Blog here and here). In short, it ruled that the detention of asylum seekers and refugees on Manus Island, which is part of PNG’s sovereign territory, is unconstitutional and hence illegal. In this blog, I will briefly discuss this judgment and its implications not only for Australia’s immigration policies, but also for broader questions concerning the tension between globalisation, sovereignty and human rights protection.
Australia’s contemporary immigration and border control policy, Operation Sovereign Borders (‘OSB’), is premised on the motto ‘No way, you will not make Australia home’ which entails that no asylum seeker arriving irregularly by boat will ever be resettled in Australia. Instead, such migrants are intercepted and transferred to either Nauru or PNG, where their asylum claims are – pursuant to Memoranda of Understanding and in exchange for Australian aid – being processed by the respective authorities of these host countries. Fully in line with Australia’s deterrence strategy, when found to be refugees, they are resettled in Cambodia, Nauru or PNG – but never in Australia. The centres where asylum seekers reside (or, put differently, are detained) during the processing of their asylum claim, which can take up to years, are built and paid for by Australia and are run by Australian-financed private companies and their sub-contractors. In the case of PNG, the detention facility is situated on Manus Island, which is remotely situated in the Pacific. PNG’s capital, Port Moresby, is over 800 kilometres away.
The legality of the offshore processing centre on Manus Island was challenged by the Leader of the Opposition in PNG, Belden Norman Namah MP. He did so, in his own words, because even young children were being held “illegally and indefinitely under inhumane conditions”. The case went all the way to the Supreme Court, which last Tuesday handed down its decision.
In the decision, the full bench of the court decided that the detention centre on Manus Island breaches the personal liberty (as enshrined in PNG’s constitution) of asylum seekers and refugees, who have committed no crime, and that their incarceration is therefore unconstitutional and illegal. In consideration 39, the majority judgment states that “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 [Manus Island Processing Centre] by the PNG and Australian governments. […] Naturally, it follows that the forceful bringing into and detention of the asylum seekers on [Manus Island Processing Centre] is unconstitutional and is therefore illegal.” In addition, the Court held that a 2014 constitutional amendment of PNG’s government, which added a paragraph to allow for the detention of foreign nationals under arrangements made by PNG with other countries or international organisations, is unconstitutional as it does not meet the requirement to respect “the right and dignity of mankind’. Although Australia was not a party to the legal proceedings, the court subsequently ordered both the governments of PNG and Australia to start moving people out of Manus Island’s detention facility.
The consequences of the Supreme Court’s judgment appear rather straightforward: Manus Island’s detention centre has to close. PNG’s Prime Minister Peter O’Neill has indeed made a statement to that effect. On second thought, however, it is more accurate to state that Manus Island’s detention centre has to close in its current form.
The ruling has caused a significant stir and heated debate not only in PNG but, first and foremost, in the Australian political realm – as this live blog witnesses. Some, including Greens senator Sarah Hanson-Young, Gillian Triggs (Australian Human Rights Commissioner), Elaine Pearson (the Australian director of Human Rights Watch) and Aurora Adams (campaigner with GetUp Australia), have argued in favour of a full abolishment of offshore processing and of a transfer of the remaining asylum seekers and refugees to Australia’s mainland. This would, in effect, mean the end of OSB. Others have, however, argued that alternative options remain possible. Some, including Australia’s Immigration Minister Peter Dutton, have for example stated that turning Manus Island’s detention facility into an ‘open centre arrangement’, as was done before on Nauru, could successfully address the challenges posed by the Supreme Court’s judgment. It has also been argued that the detained asylum seekers and refugees on Manus Island could be transferred to the offshore processing facilities on Nauru or to Christmas Island, which, although it belongs to Australia’s sovereign soil, is legally excised from Australia for migration purposes. A further possibility is the transfer of these individuals to third countries, although it remains unclear at this stage whether other countries are willing to cooperate with such a scheme.
What will happen to Manus Island’s detention facility as a result of the PNG’s Supreme Court decision is thus not as obvious as one might expect. What is clear, however, is that detention as it is organised now is no longer durable. This conclusion has far-reaching consequences not only for those detained but also for those involved in the detention governance. In accordance with the ruling, PNG’s leadership will have to close the facility as soon as possible. The Australian government will either have to find alternatives in order to maintain the credibility of its deterrence policy or will have to abolish OSB and offshore processing altogether. Broadspectrum, the main private contractor running the detention facility on Manus Island, has placed its shares in a trading halt and will soon make a statement about the impact of the ruling on the company’s business. In the meantime, the community of Manus Island – represented by its MP Ron Knight – demands that the promises made by the PNG government in return for establishing the centre within the Manus community, such as road fixes, need to be fulfilled no matter what. The decision has, in sum, caused a stir amongst all stakeholders involved which, for a considerable time, profited significantly from the commodification of migration detention of which the Manus facility is a rather visible manifestation.
The importance of the PNG’s Supreme Court decision does not limit itself to the Australian-Pacific region. Although the judgment primarily affects Australia’s immigration policies and its geo-political relationship with PNG, it also carries wider implications for debates on globalisation, migration and sovereignty elsewhere. In Europe, for example, similar offshore processing arrangements are being considered in contemporary debates on migration and border control. Such arrangements are often characterised by hybrid power relations between public, private, domestic and foreign actors. At the same time, human rights protection remains, from a legal point of view, largely an obligation of the territorial State which by no means needs to be the dominant actor in the governance field. A clash can thus be observed between the exercise of power in a neo-liberal and globalised reality and the legal protection offered to individuals situated in far-away and hidden places. What the PNG case shows is that the result of this clash can be beneficial for detainees: indeed, the Supreme Court ruling was premised on PNG’s constitutional safeguards and human rights obligations, which were accorded to the detained individuals at Manus Island simply because they were located on PNG’s sovereign territory. At the same time, the consequences of this clash could also have a negative impact on detainees. For example, in a forthcoming article, I argue that the case of Nauru is a clear-cut situation where individual protection under international human rights law is rendered rather meaningless in the web of interaction across the public/private and domestic/foreign divides. Whilst the recent judicial developments in PNG thus constitute a spark of hope for those advocating human dignity and equal worth in (offshore) detention, further challenges are imminent.