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On April 26th, 2016, the Supreme Court of Justice for Papua New Guinea (PNG) ruled unconstitutional the indefinite detention of refugees at the Manus Island Processing Centre, thereby dealing a major blow to Australia’s current refugee deterrence regime, colloquially known as the “Pacific Solution.”
Under the most recent iteration of the “Pacific Solution,” Australia had orchestrated a memorandum of understanding (MOU) with PNG whereby “irregular migrants” intercepted at sea by Australian border authorities would be first detained (and minimally processed for health and identification purposes), and then permanently transferred to a detention center located on Manus island. Australia has a similar MOU with the small island nation of Nauru. Although PNG and Nauru ostensibly exercise jurisdictional control over the detention centers, the MOUs entail that Australia provide full funding and support for their operation. Indeed, the Australian security contractor, Broadspectrum, currently staffs and administers the detention facilities on both Manus and Nauru.
The “Pacific Solution” has been the object of much criticism from advocates of refugee and human rights. Despite tight government control in PNG and Nauru, as well as harsh secrecy laws in Australia that sharply limit information about conditions in the processing centers, there are many indications that people have endured extreme physical and mental suffering from prolonged detention. Indeed, there have been many reports of sexual abuse at the Manus and Nauru facilities–even at the hands of Australian contractors–and, in May of 2016, a 23 year old Iranian immolated himself before a contingent of UNHCR representatives touring the Nauru facility. Aside from physical harms, refugees at Nauru and PNG face bleak prospects. With their efforts to reach Australia thwarted, they must rely on the deficient refugee determination processes available in PNG and Nauru. For those with successful claims, the future entails either a narrow chance of resettlement abroad or, more likely, some form of permanent settlement in PNG or Nauru. Given the meager livelihoods available there even for nationals, however, this is not a realistic settlement option. Individuals whose refugee claims do not succeed face the prospect of interminable detention or return to the homes they have fled.
The Supreme Court of PNG has now ruled that this arrangement is both invalid and violative of basic human rights. The Court did so without any legal reliance on the 1951 Convention relating to the Status of Refugees. Indeed, while PNG, Nauru, and Australia are all signatories to the 1951 Refugee Convention and its 1967 Protocol, PNG has recorded seven reservations to the Convention, thereby exempting itself from important obligations regarding the detention of refugees (Art. 31 ), freedom of movement (Art. 26 ), wage-earning employment (Art. 17), housing (Art. 21), and elementary education (Art. 22). Consequently, while detention at the Manus facility (and even the accumulation of PNG’s reservations) might work against the purpose of the Refugee Convention, PNG does not violate its black-letter obligations.
While the PNG Supreme Court gave some note and respect to the Refugee Convention, it relied entirely upon the rights enumerated within PNG’s Constitution to undercut the Manus Island MOU. The Court based its analysis principally upon Sec. 42(1) of the Constitution, which guarantees freedom of the person (including, as the Court reasoned, freedom from physical restraint) to all people in PNG except in limited circumstances, such as criminal detention. The government of PNG argued that the detention of refugees on Manus fell within one such exception that provides for the detention of people unlawfully present in PNG (Sec. 42(1)(g)). However, in order to implement the refugee MOU with Australia, the PNG government officially declared a blanket entry permit exemption to all refugees forcibly brought to PNG by the Australian authorities. As the Court pointed out, this declaration clearly obviated any claim by the government that the refugees at Manus were unlawfully present in PNG. The right to freedom of the person under of PNG Constitution therefore attached to these refugees.
Anticipating this problem, the PNG government had passed a constitutional amendment that added another exception to Sec. 42(1) freedom of the person, which was specifically tailored to the needs of the Australian MOU. That amendment allowed the Minister for Immigration to unconditionally detain any foreigner brought into PNG in accordance with an international agreement. The Supreme Court found this amendment to be unconstitutional. Although the amendment had been passed in accordance with formal procedural requirements, Sec. 38 of Constitution required that any amendment affecting the rights and freedoms of individuals be “reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind.” Since the government made no attempt to show that this test was met (and the Court had no interest in assuming the government’s burden), the Court found the amendment to be invalid. Without the shield of the constitutional amendment, the Justices reaffirmed 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.
Importantly, while acknowledging the limits of their obligations, the Court made special reference to the Refugee Convention and UNHCR’s Detention Guidelines. It was clear to the Justices that the treatment of unwilling detainees on Manus fell well below international standards. As a remedy, the Court ordered the PNG government to take immediate steps to close the Manus Island Processing Centre. Following this decision, the Court is now considering the matter of financial compensation for the detainees, as well as motions seeking their immediate return to Australia.
Despite promises to accelerate processing of Manus Island detainees for release, the PNG government has been slow to comply with the Supreme Court decision. In response, the Court recently ordered a two week deadline to process all remaining detainees. The fates of these individuals are uncertain, though most will likely be released into PNG. Australia, for its part, has made clear that it will not accept any detainees. As the newly re-appointed PM Malcolm Turnbull made clear, “we cannot be misty-eyed about this…we must have secure borders and we do and we will, and they will remain so, as long as I am the Prime Minister of this country.” Nevertheless, the PNG Supreme Court’s decision adds further weight to criticism of Australia’s “Pacific Solution.” Indeed, if Australian authorities are physically apprehending, detaining, and transferring presumptive refugees against their will to places like Manus Island, where their basic human rights are being clearly violated, then the non-derogable prohibition against refoulement in Art. 33 of the Refugee Convention could be implicated. While Australia ostensibly complies with Art. 33 by relocating refugees to “safe third countries” rather than returning them home, the refoulement inquiry nevertheless demands “anxious scrutiny” of Australia’s relocation partners. If the treatment of refugees in these nations amounts to indirect refoulement or even persecution, then Australia still violates its Art. 33 obligations. Unfortunately, such a showing would likely have limited effect in Australian courts. Since passage of amendments to its Migration Act in 2014, Australia has flagrantly denied that its non-refoulement obligations apply to “unauthorized arrivals” caught in the “Pacific Solution” net.
The PNG Supreme Court ruling nevertheless reveals another way to litigate Australia’s involvement in the illegal detention on Manus Island. As the Court’s decision made clear, the treatment of refugees at the processing center violated basic human rights. These rights are found not only in the PNG Constitution or Refugee Convention, but also the International Covenant on Civil and Political Rights (ICCPR), to which PNG and Australia are both signatories. Based on the Supreme Court’s findings as well as news reports, conditions at Manus Island likely violated ICCPR prohibitions against cruel, inhuman or degrading treatment (Art. 7) and arbitrary detention (Art. 9). Although these violations occurred in PNG, it could be argued that the terms and execution of the refugee MOU establish Australian jurisdiction. Importantly, in a recent case before Australia’s High Court, three Justices found that the Commonwealth substantively detained individuals at the processing centers on Nauru, either through effective control or de facto agents. Liability could also attach to Australia through the evolving doctrine of third state responsibility. Indeed, ff Australia knowingly aided or abetted rights violations at Manus Island, it could be deemed responsible for those acts. Regarding human right litigation, it is noteworthy that Australia is a signatory to the 1966 Optional Protocol to the ICCPR, thereby accepting jurisdiction of the UNHRC to review complaints filed by individuals.
In sum, the PNG Supreme Court decision on Manus Island offers an excellent example of refugee advocacy that utilizes the full kit of available legal tools. Often, when the Refugee Convention is unavailable or limited by reservation, other international instruments and–above all–domestic law can offer powerful means of realizing refugee rights.
 James Hathaway and Michelle Foster, The Law of Refugee Status 49 (2014).