Papua New Guinea's Supreme Court has ruled that Australia's detention of asylum seekers on Manus Island is illegal, saying it breaches the right to personal liberty in Papua New Guinea's constition.
In Namah v Pato [2016] PGSC 13 (26 April 2016), the former PNG Leader of the Opposition, Beldan Namah, made an application to the Supreme Court pursuant to section 18(1) of the Constitution, seeking declaratory orders:
"That transferees brought to Papua New Guinea by the Australian Government and detained at the relocation centre on Manus Island is contrary to the constitutional rights of the transferees to personal liberty guaranteed by Section 42 of the Consitution.
"That Section 42(1)(g) of the Constitution does not apply to the transferees (asylum seekers) under the Memorandum of Understanding signed on 8th September 2012 and the new MOU signed on 5 and 6 August 2013.."
Over 850 men are detained on Manus Island, with about half of them having been found to be refugees. The detention centre was built in 2001, with the last inmate being given asylum in Australia in June 2004. The Australian government recommenced detaining people at Manus in November 2012
The centre is managed by Australian company Broadspectrum (Australia) Pty Ltd, which also runs the Australian offshore processing centre on Nauru.
The five-judge Bench has released a unanimous decision, ruling "both the Australian and Papua New Guinea governments shall forthwith take all steps necessary 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 transferees' constitutional and human rights."
Justice Kandakasi said treating those required to remain in the relocation centre as prisoners irrespective of their circumstances or their status save only as asylum seekers, was to offend against their rights and freedoms as guaranteed by the various conventions on human rights at international law and under the PNG Constitution.
Papua New Guinea Prime Minister Peter O'Neill has said in a statement that the Manus Island Detention Centree would be closed following the Supreme Court decision. He said the PNG Government would "immediately ask the Australian Government to make alternative arrangements for the asylum seekers".
However, Australian Immigration Minister Peter Dutton has released a statement stressing that Australia's Government "has not resiled from its position that people who have attempted to come illegally by boat to Australia and who are now in the Manus facility will not be settled in Australia."
Mr Dutton says the Australian Government will work with its "PNG partners" to address the issues raised by the Supreme Court.
Australia's Human Rights Commission has welcomed the PNG court decision.
"The Court's decision affirms the Commission's long-standing concern that the prolonged and indefinite detention of refugees and asylum seekers in Papua New Guinea may lead to breaches of our obligations under international law," says Commission President Gillian Triggs.
"This ruling is further confirmation that Australia's detention policies are increasingly out of step with international norms," she says.