27 April 2016

Australian Prime Minister Malcolm Turnbull must respond to yesterday’s decision of the Papua New Guinea (PNG) Supreme Court and reverse the illegal actions taken by his predecessors, the Refugee Council of Australia (RCOA) says.

The PNG Supreme Court found the detention of asylum seekers and refugees on Manus Island to be against the law, contravening the right to personal liberty guaranteed in the PNG constitution. It also ruled that the forced transfer of people to PNG was illegal.

RCOA chief executive officer Paul Power said the Turnbull Government had no alternative but to respect the law of PNG and act immediately to reverse the illegal transfer of people to Manus Island.

“The Supreme Court decision has illustrated that, while Australian politicians were falsely vilifying people seeking asylum as ‘illegal maritime arrivals’, it was the Australian Government which was in fact acting outside the law,” Mr Power said.

“This mess began with decisions of the Gillard Government in 2012 and was exacerbated by subsequent actions of the Rudd and Abbott Governments. It now falls to Mr Turnbull to ensure that Australia acts within the law.

“As the transfer of people against their will to PNG was the first of the illegal actions, the Australian Government must immediately reverse this and return all refugees and asylum seekers sent to PNG back to Australia. When they are returned, the Australian Government must respect the refugee status already granted to around 500 refugees and allow for a full and fair review of the initial negative decisions of around 400 others.”

The Australian Government’s most recent Operations Sovereign Borders update suggests that 992 of the people forcibly transferred to PNG remained in PNG as at 31 March 2016. Of these, 501 had been found to be refugees, 396 were having initial negative decisions reviewed and 95 were waiting for an initial decision.

“The PNG Supreme Court ruling highlights the ad-hoc nature of Australia’s detention policies, which have, for too long, prioritised Australia’s short term political interests and have forced other countries to break their own laws,” Mr Power said.

“Australia now faces substantial compensation claims as, under the MOU with PNG, Australia was liable for all costs associated with running the Manus Island centre.”


More information contact Laura Stacey 0488 035 535 or Tim O’Connor 02 9211 9333


Summary and potential implications of the 26 April 2016 PNG Supreme Court decision on detention of people seeking asylum

  1. The PNG Supreme Court ruled unanimously and resoundingly that the refugees and people seeking asylum on Manus Island were being detained in breach of the guarantee of liberty in the PNG Constitution (S.42). This ruling is unimpeachable and reinforces the position of the Refugee Council of Australia, (in concert with UN and others) that the Manus Island immigration detention regime breaches basic human rights. The decision also highlights the deficiency of the Australian legal structures in regard to protection of fundamental human rights in our constitutional system and allows for the extreme perversity of Australia’s refugee policy to be brought into practice.
  2. The decision also clarifies:

  • The PNG Constitution requires that any detention must be justified under human rights standards, that is, there must be both legitimate purposes for detention and the detention must be proportional to that purpose. This is a substantive requirement that greatly limits or excludes the practice of Australia’s offshore processing system. This is made clearer in one of the judgments which expressly endorses the Australian High Court’s statements as to the permissible constitutional purposes of detention, which do not include the detention of another country’s asylum seekers. This effectively forecloses any ‘workaround’ to reinvigorate the PNG ‘solution’.
  • The legislative regime under which PNG detained its asylum seekers was entirely deficient. The constitutional amendment made by PNG before the recommencement of offshore processing did not meet the formal requirements (such as specifying the rights to be restricted and justifications in relation to that restriction), there was no legislation put in place to implement that amendment, and the ministerial ‘exemption’ from the provisions in relation to illegal entry was also not lawful.
  • The people on Manus Island were brought into PNG unlawfully by Australia, as they were brought without consent and not under any existing provision of PNG migration legislation, and have since been held unlawfully.
  • The PNG Constitution has not qualified any of the other human rights of asylum seekers. It would not therefore be compliant with the Supreme Court ruling to simply abandon them in PNG.
  • This decision appears to invoke an irresistible case for compensation, since the whole regime has been found to be unlawful. Under Australia’s MoU, Australia is liable for all costs associated with offshore processing arrangements and seemingly including any compensation costs sought.
  1. Key questions to be answered:

  • While the final outcomes are still unclear, the decision effectively rules out the immigration detention on Manus Island as currently practised. Where will the Australian Government attempt to resettle the detainees from Manus Island?
  • Since the entire Australian-PNG detention system is undermined, will the claims of those already processed still stand?
  • Since the asylum seekers and refugees were brought unlawfully into PNG, can they be left there if the centre is kept open?
  • With Nauru at capacity, resettlement to Cambodia only available on a voluntary basis, what other options than resettlement in Australia does our Government have?