By James O’Neill*
“Labor’s policy is clear. We will not put the people smugglers back in business”
(Bill Shorten, SMH 10 May 2016)
That may well be a laudable aim. But it does not constitute a refugee or asylum policy.
The moral, ethical and legal bankruptcy of both Labor and the Coalition’s refugee policy was brought into particularly stark relief by the decision of the Papua New Guinea Supreme Court on 26 April 2016 in a unanimous five Judge judgment to declare that the detention of asylum seekers on Manus Island was both illegal and unconstitutional.
The five Judges held that the bringing of asylum seekers to Manus Island Detention Centre who had sought asylum in Australia pursuant to two Memoranda of Understanding signed by the two countries was unconstitutional and invalid.
The decision should not have come as a surprise. Section 39 of the PNG Constitution requires the Courts to have regard to a number of specific considerations. Relevantly, these matters include the United Nations Charter; the Universal Declaration of Human Rights; the European Convention for the Protection of Human Rights; and the decisions of relevant international tribunals in giving effect to the provisions of the relevant international agreements, conventions and protocols affecting human rights.
Australia is a party to the same conventions and protocols as PNG.
Furthermore, the UNHCR had published a detailed report on the Manus Island detention facility on 4 February 2013. In that Report, the UNHCR concluded:
“Assessed as a whole, the UNHCR is of the view that the facilities on Manus Island lack some of the basic conditions and standards required. In particular, the closed detention setting and the lack of freedom of movement, along with the absence of an appropriate legal framework and capacitated system to assess refugee claims, are particularly concerning.”
Instead of responding to that direct and very forceful criticism by modifying its refugee and asylum seeker policies, the Australian government has in effect turned its back on its international obligations. For rather obvious domestic political reasons successive governments have pursued policies that by any standard are increasingly untenable.
There were two separate but related responses to the Supreme Court’s ruling that should be noted. The first of these was a statement by PNG’s Prime Minister Peter O’Neill that the Manus Island Detention Centre would be closed, although he gave no specific date. Mr O’Neill made it clear that Australia would have to make “alternative arrangements.”
Although Mr O’Neill did not stipulate a date for the closure of the Detention Centre he would have been well aware that the Supreme Court’s Orders included (as Number 6)
“Both the Australian and PNG governments shall forthwith take all necessary steps to cease and prevent the continued unconstitutional and illegal detention of the asylum seekers or transferees at the relocation centre on Manus Island and the continued breach of the asylum seekers or transferee’s Constitutional and human rights.”
“Forthwith” has a well-settled legal definition. It means immediately, promptly, without delay, within a reasonable time under the circumstances of the case. It does not afford the luxury of procrastination. The Australian government is going to have to come up with some serious options, and soon.
The second post-judgment decision of note was an announcement by Ferrovial Corporation, that the parent company of Transfield Services who perform “security” duties on Manus and Nauru under contract to the Australian government, would be ceasing running detention centres as part of their business.
Minister of Immigration Peter Dutton’s response was instructive. He insisted that Ferrovial/Transfield “must continue to meet their contractual obligations.” The response demonstrated yet again the government’s disregard for its legal obligations and in Dutton’s case his tenuous grasp of reality. Whether it is willful ignorance, pigheadedness, or a disregard for the law, or some combination of all three, is an open question.
Dutton knows, or ought to know, that an illegal contract is simply unenforceable. The PNG Supreme Court made it abundantly clear that the Detention Centre’s activities are illegal, as well as unconstitutional. Blustering petulance is not an adequate policy response.
But the government’s problems do not end there. By persisting in confining the asylum seekers in any place against their will without proper process is a criminal offence in both PNG and Nauru. As Tony Blackshield (The Saturday Paper, 7 May 2016) the relevant provisions of the criminal code in PNG and Nauru are based on the Queensland Criminal Code.
Professor Blackshield suggests that every day that Ferrovial/Transfield employees continue to operate the Manus Island and Nauru Detention Centres they risk imprisonment of up to three years. As the contracting principal, employer and director of these operations it is at least arguable that members of the government are thereby a party to the illegal, i.e. criminal conduct.
Minister Dutton has ruled out sending the detainees to Christmas Island. (SMH 28 April 2016) His other responses to the Supreme Court’s decision clearly show that he has not read the judgment, or if he has he has not understood it.
The PNG Supreme Court decision has squarely put the onus of formulating an alternative set of policy options back where it properly belongs, on the Australian government. The responses of Dutton and Shorten to date demonstrate that they have not grasped a very basic point. The existing policies are illegal, inhumane and contrary to our international obligations. A radical rethink is long overdue.
*Barrister at Law. He may be contacted at firstname.lastname@example.org