PNG Supreme Court Judgement Puts Australia Firmly in the Dock

png supreme court

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 joneill@qldbar.asn.au

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Comments

  1. So no follow up?
    Climbing under a rock are we?

    • Sorry, meant crawling under a rock.

    • James O'Neill says:

      Ned, both major parties have been caught short by the judgment. They are both equally complicit in the travesty of our gulags. I suspect therefore that they have tacitly agreed to shut up about the judgment until after the election.

  2. James O'Neill says:

    Ned, two brief responses to your questions. First, a refugee is not required to seek asylum in a transit country. Only when they seek asylum are they then supposes to be processed in accordance with, in this case, the Refugee convention and later Protocol, both of which Australia has ratified.
    Secondly, on the Syrian issue, that is far too complicated to respond in a comment section. The short version is that most of the Syrian refugees had been in Turkey for a considerable time. After the Russian intervention, Turkey basically expelled them as a means of putting pressure on EU governments. They also sought a 6 billion euro bribe. An additional complication is that the refugee situation is also being used to infiltrate terrorists into western Europe. Gladio Mark 2. We know that Turkey is giving out fake Syrian passports for this purpose.

    • James, thanks for the explanation.
      On the first point it seems that alleged refugees whilst in Indonesia are not seeking asylum there. They are choosing to delay any suggestion of seeking or needing asylum until they come under Australian jurisdiction.
      If that is not selective asylum shopping for a commercial benefit of Australia’s financial benefits at taxpayer’s expense then I am down with Alice in Wonderland.
      Pity the Greens do not understand the facts.
      As for the second point, totaly agree, all part of the planned destruction of Europe by promoting social discord and violence, that the globalists will resolve with their plan to destroy the independent sovereignty of all countries.
      With Dr. Day’s exposure the ‘light of day’ is for all informed to comprehend.

      • I might add on the second point re Europe. Same modus operandi is being applied in the US with immigrants wandering in and getting benefits denied to current US citizens. Obama even wants to enable them to vote.
        Time the Australian public woke up to the increasing plans to apply the same tactis here without giving us any voice on the matter.
        It is the same end game principles being applied by the NSW Baird government with the enforced council amalgamations ….. to dissociate local communities by creating larger more non responsive bureacracies.
        People cannot see what is going on before their own eyes!

        • And Ned, here you have Globalization 101. Barb Specter would be proud things are working out so well. (I’m sure you’ve Youtubed her by now).

        • BTW Ned, I know its not really related in a legal sense, but not long back you couldn’t get a single room in a North Queensland Hospital because they were all occupied by PNG Nationals in isolation being treated on the Aussie dime for multi-drug-resistant TB.

  3. James, please walk me through it again. The judge in PNG made a decision in his own court that certain “visitors” (Transfield contractors) must amscray. He said “Do it forthwith.” You said the members of Australian government failed to pick up on what the judge has ruled.

    I retorted that a “government” (notably, American) does not worry when a court tells them to do things (like when a court told them to release publically the records of certain assassinations) because, after all, who is the law enforcer? It is the government. I implied that Canberra can just twiddle its thumbs, letting the status quo continue in Manus Island.

    But now I see that PNG has enforced the judge’s order by releasing the detainees into the population locally. Wow, that is quite an unexpected burden for the people of Manus Island. Do you have an opinion as to Australia’s responsibility?

    http://www.sunraysiadaily.com.au/story/3903396/lucky-they-are-not-chopped-up-fears-of-rising-violence-on-manus-island-as-asylum-seekers-are-released/?cs=12

    • James O'Neill says:

      Mary, Australia took those refugees to Manus pursuant to a MOU that the Court has ruled to be null and void. There is no question in my view that Australia has a legal as well as moral obligation to comply with its obligations under the Refugee Convention and Protocol.
      As I indicated earlier, the Opposition are keeping quiet because they are equally culpable for the disgraceful situation that has arisen.
      Just to keep matters in perspective, the total refugees on Manus and Nauru are less than 0.5% of last year’s migration intake.

  4. James, I have one misunderstanding it seems.
    Persons seeking asylum are departing some undesirable country to another for various reasons to seek asylum.
    What is so undesirable in Indonesia that should justify their progression from a place of safety, such as indonesia. to Australia?

    • As an observation, why are so many being introduced via Turkey to Europe, the land of infidels? What is the attraction for the immigrants.

      • Perhaps Dr. Day may explain with his disclosure of enforcing cultural ‘assimilation’ and the abandoment of sovereign borders so as to have a one world banker’s fascist state under a corrupt UN.
        Fine! But at what cost?
        With all respect, bleading hearts should consider the big banker control freak’s agenda.
        Senator Hanson-Young and the Greens are clearly being used.

  5. James, I am ignorant of New Zealand’s offer. Do you mean offer to be a “houser” like Manus, or offer to absorb the asylum seekers.
    The word “forthwith” has almost no value when the commandee is government (at least in my US experience).

    You could define it as: “like ‘manyana’ but with less urgency.”

    • James O'Neill says:

      A the NZ government offered to take 150 refugees per year as part of their refugee intake program. The offer has been repeated and again refused. So much for Australian humanitarian concern.
      “forthwith” has a precise legal meaning in Australia. The Courts take a very dim view of being ignored and I have no reason to think the PNG court would be any different.
      A measure of how much at sea ( no pun intended) the government here is can be discerned in Dutton’s response I quoted in the article. Putting him in jail for contempt and being party to a criminal act would be a delicious irony.

      • As some bloke once said, Who will guard the guardians?

        Yes it would be good to see the law come crashing down on the head of any person in a position of trust who has shirked bigtime.

  6. Now there are two shockers for you:

    1. a nation (PNG) acting like it has sovereignty (What can it be thinking!), and
    2. a judge who acts like he has a duty to protect the country’s constitution — or even the rule of law (Where does he get off doing that!)

    Thin end of the wedge, thin end of the wedge.

    What’ll be next — people acting like they can hold their leaders accountable? Where will it all end? James, this is a crisis!

    Yay!

    • I’m fainting! News has just come thru that Judge Rosemary Collyer in Washington DC has ruled on the unconstitutionality of some parts of Obamacare.

      She was adjudicating a lawsuit by some members of Congress against the president.

      Somebody somewhere has read the Constitution!

      http://thehill.com/policy/healthcare/279695-judge-rules-for-house-gop-in-obamacare-suit

    • James O'Neill says:

      Mary, you will have noted that the PNG decision has disappeared from the Oz media landscape. Neither of the two major parties want to talk about its implications. Their leaders are probably secure in the knowledge that your wish for accountability is but a pipe dream. After all, Howard, Blair and Bush are still walking free despite waging an illegal war on Iraq.

      • James, this one is bit complicated for the likes of me, but I am thinking the Contractor (Transfield) was ASIO-type in the first place and so there would never be litigation to make them “perform.”
        And if I’m right (but that was only speculation), then it would explain why no one has to worry about paying for breach of contract. Too bad there is no money at stake, as then Oz would find itself obeying PNG which would be quite the edifying moment.
        And it would be heart attack city in Warshington or Geneva.

        • James O'Neill says:

          Mary, I don’t know about any ASIO links with Transfield. I suspect that they were given the contract because they could be relied upon to do the dirty work on behalf of the government. Australia persists in insisting that it was PNGs responsibility, yet refuse New Zealand’s offer of settlement which is PNG really was in control it would have been accepted. The real test will come I think when the Court enforces the “forthwith” clause in their orders.
          In the meantime Turnbull and Shorten are hoping it will go away until at least 3 July which is all the more reason to go out and haste your local candidates and demand to know what they are going to do to obey the Court.

        • James, speaking of Bush walking free, did you ever hear the one about soldiers boarding a plane on the tarmac in Australia to arrest Cheney (many years ago) but they, the soldiers, got shot dead instead. I don’t place too much credence in it, but it came from Wayne Madsen who has proved reliable in other areas where I bothered to follow up.

          The late Sherman Skolnick, whom I call my rabbi, claimed Admiral Boorda was killed – but not on the spot – for trying to arrest Bill Clinton for treason. I place Skolnick’s reliability fairly high. He did put several judges behind bars in Illinois so he must be someone who knows how to marshal evidence. But he could be a bit reckless now and again.

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