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Cheque book solution on asylum is unconstitutional

  • 28 April 2016


A bench of five justices of the Supreme Court of Justice, the highest court in Papua New Guinea, has unanimously ruled that the detention of asylum seekers on Manus Island is unconstitutional.

The successful applicant in the case was Belden Norman Namah, the PNG Leader of the Opposition. Unlike the Australian Constitution, the PNG Constitution contains a list of basic human rights including section 42 which deals with 'liberty of the person'. That provision states that 'No person will be deprived of his personal liberty' except in specific circumstances.

Back in 2001 when John Howard's government instituted the first Pacific solution, there was only one exception which came even close to dealing with the deprivation of liberty of asylum seekers being brought to PNG and detained there. That was section 42(1)(g) which permitted deprivation of liberty 'for the purpose of preventing unlawful entry' into PNG.

But it was a long stretch of the bow to argue that this provision could cover the entry into PNG of persons brought there with the PNG government's agreement on receipt of a cheque from Australia.

The Australian government and its lawyers have been on notice about this illegality for 14 years.

When the now grandfather of the House of Representatives Philip Ruddock was Minister for Immigration and Multicultural Affairs, he made a habit of criticising Australian judges whom he thought too soft on asylum seekers wanting to vindicate their legal rights in court.

At the same time, he had gone ahead instituting Australia's first edition of the 'Pacific Strategy' for warehousing asylum seekers offshore. I wrote to him on 9 June 2002 saying:

'Despite your recent adverse comments about the Australian judiciary, I note that you have not refuted my concerns about the legality of the Pacific Solution preferring simply to observe that no court proceedings have been instituted in Nauru and that the action in PNG was struck out for non-appearance of counsel on 6 May 2002. 

'I concede that the PNG government may well have issued conditional visas to the detainees on Manus Island but any visa with a condition amounting to detention would still be unconstitutional.'

Mr Ruddock replied on 22 August 2002:

'I note your continuing concerns about the legality of the government's Pacific Strategy. The constitutionality of the arrangements for accommodation of asylum seekers in Nauru and Papua New Guinea is a matter for the governments of the countries concerned.

'It is relevant to note, however, that to the