Australia, asylum seekers and PNG’s Supreme Court decision
2 May 2016|

The PNG Supreme Court’s Manus Island
decision of 26 April has created legal and diplomatic challenges for PNG and Australia. The ruling that the ongoing detention of asylum seekers at the Manus Island Regional Processing Centre was contrary to section 42 of PNG’s Constitution guaranteeing ‘liberty of the person’ also included orders that both governments take the necessary steps to ‘cease and prevent the continued unconstitutional detention of the asylum seekers’.

PNG Prime Minister Peter O’Neill responded a day later by indicating that the Manus facility would be closed, though no date was given. O’Neill also made clear that PNG would ask Australia to make ‘alternative arrangements’ for the Manus detainees, and that negotiations would be commenced on the timeframe for closing the facility and managing the settlement of legitimate refugees in PNG. Australia’s Immigration Minister Peter Dutton responded by reasserting that none of the Manus detainees would come to Australia.

The Manus facility opened in 2001 when John Howard originally struck a deal with PNG as part of the Pacific Solution, and closed in 2008 with the election of the Rudd government. The Gillard government then negotiated with PNG to reopen the facility in 2012. That arrangement was significantly extended in July 2013 when Kevin Rudd, in his second iteration as Prime Minister, reached agreement with Peter O’Neill for a more extensive regional resettlement program under which unauthorised maritime arrivals entering Australian waters would be transferred to PNG for processing and resettlement in PNG. The July 2013 arrangement was formalised under an August 2013 Memorandum of Understanding between Australia and PNG which provided for the transfer of asylum seekers by Australia to PNG for the processing of their asylum claims, that PNG would conduct its activities consistently with the PNG Constitution and its domestic law, and that Australia would bear all of the costs under the MOU.

An important element of the MOU is that PNG undertakes to permit persons transferred to Manus Island to be ‘lawful during their stay’ in PNG consistently with the terms of the PNG Migration Act, and that persons determined to be refugees are eligible to settle in PNG in accordance with the 1951 Refugee Convention. While PNG met its end of the bargain, including the making of orders exempting the Manus detainees from the operation of the Migration Act which would otherwise have made them unlawful non-citizens liable to deportation, the 26 April Supreme Court decision changed the legal landscape.

What are the options available to PNG and Australia with respect to the Manus detainees? While PNG remains open to welcoming legitimate refugees who are interested in staying, only a handful of the approximately 400 Manus detainees that have had their asylum claims recognised (out of 850) have so far taken up that offer. A combination of cultural, economic, religious and security factors make resettlement in PNG an unattractive option for many Manus detainees. Nevertheless there’s always the prospect of additional resettlement incentives being offered via Australian funding. The Manus detainees’ status could also be modified under the Migration Act to circumvent the Supreme Court judgment. Likewise the government could seek to again amend section 42 of the Constitution and exempt the Manus detainees from their constitutional freedoms. However, both of these options require political will on the part of the O’Neill government.

For Australia, its first line of argument has been that it expects PNG to uphold its MOU obligations under which Australia takes the position that the Manus detainees are PNG’s responsibility which includes respecting its Refugee Convention obligations. Australia views MOUs as having moral, political or practical effect and as not being legally binding, however the existing MOU can be varied—that may be the focus of forthcoming official discussions.

If the Turnbull government adheres to its stated position that none of the Manus detainees will resettle in Australia, then other options presently appear limited (other than resettlement in PNG). Nauru remains a live option and is reported to have capacity, however mixing the Manus detainees with those on Nauru could prove to be a recipe for unrest especially in light of the recent death of an Iranian asylum seeker who set himself on fire in Nauru, later dying in a Brisbane hospital. New Zealand has repeated its offer of assistance but that has been rejected on the grounds that it potentially opens a ‘back door’ entry route into Australia. Negotiations could always be reopened with previous resettlement partners such as Cambodia and Malaysia, but even if those discussions were positively advanced once the Turnbull government enters caretaker mode following the calling of the 2016 election its capacity to conclude another MOU with a resettlement partner will be compromised unless the Opposition have been consulted and are also in agreement.

Regardless of the path taken by the Turnbull government, it will be just the latest chapter of Australia’s asylum policy saga, rather than the last.