Blackshield

BY TONY BLACKSHIELD

On Tuesday the Supreme Court of Papua New Guinea held that the detention of asylum seekers on Manus Island was unconstitutional. The Court ordered that the governments of PNG and Australia ‘shall forthwith take all steps necessary to cease and prevent’ their ‘unconstitutional and illegal detention’, and the ‘continued breach’ of their constitutional and human rights.

Although the decision was unanimous, only two of the five judges delivered full judgments: the PNG judge Ambeng Kandakasi, and the Australian judge Terence Higgins, formerly Chief Justice of the ACT Supreme Court.

The Papua New Guinea Constitution and the right to personal liberty

Like most contemporary constitutions (except that of Australia), the PNG Constitution includes a judicially enforceable Bill of Rights. Those adopted since 1950 have become increasingly elaborate, and the PNG version is more elaborate than most. It distinguishes carefully between those rights extended to every ‘citizen’, and those inherent in every ‘person’, regardless of citizenship. Every ‘citizen’ has the right ‘to move freely throughout the country’ (s 52); every ‘person’ has the right to ‘personal liberty’ (s 42).

The rights are not absolute. The right to personal liberty is guaranteed except in eight specified circumstances, listed in paragraphs (a) to (h). The most obvious is imprisonment under judicial sentence pursuant to a finding of guilt; another is quarantine.

The initial focus of last Tuesday’s proceedings was on paragraph (g): detention:

for the purpose of preventing the unlawful entry of a person into Papua New Guinea, or for the purpose of effecting the expulsion … of a person from Papua New Guinea.

But the PNG government’s attempt to rely on this paragraph was quickly disposed of, since clearly the asylum seekers had no intention of entering PNG. As the judgment explained: ‘Their destination was and continues to be Australia.’ Hence paragraph (g) was irrelevant.

The deprivation of liberty and the need for statutory authorisation

Moreover, the Court has consistently ruled that paragraphs (a) to (h) do not immediately by their own direct force give validity to deprivations of liberty. Such deprivations must be authorised by specific legislation, and the purpose of paragraphs (a) to (h) is simply to ensure that such legislation will be valid.

Accordingly, even if paragraph (g) had been applicable, it would still have been necessary to find that it had been followed up by specific provisions in the PNG Migration Act. But in fact what had happened under that Act was that, pursuant to his agreement with Australia, the Minister for Foreign Affairs had issued each individual asylum seeker with a permit to enter PNG, thus rendering the idea of ‘unlawful entry’ even less applicable.

The validity of a hasty constitutional amendment

Given that reliance on paragraph (g) was likely to fail, in 2014 the PNG government had amended the Constitution to insert a new paragraph (ga), specifically authorising detention:

for the purposes of holding a foreign national under arrangements made by Papua New Guinea with another country or with an international organisation that the Minister …, in his absolute discretion, approves.

But the judgments delivered on Tuesday held that this amendment, too, was invalid.

Like many constitutions nowadays, the PNG version subjects its guaranteed rights to an ‘override’ provision like that in the Canadian Charter of Rights and Freedoms: a law that impinges on a guaranteed right is permissible if it is ‘reasonably justified in a democratic society’. And a constitutional amendment is just as much subject to this provision as any other law.

But here again the PNG version (s 38 of the Constitution) adds its own refinements. In addition, for the restrictive law to be valid, it must display ‘a proper respect for the rights and dignity of mankind’, and its purpose must be to serve the public interest in certain specified ways. Moreover, it must be ‘expressed to be a law that is made for that purpose’, and must ‘specify the right or freedom that it regulates or restricts’.

The insertion of paragraph (ga) made no attempt to comply with these requirements: it was part of a more general enactment which was otherwise concerned with ‘citizenship’, and directed to expanding rather than restricting the constitutional rights of citizens. The attempt to insert paragraph (ga) had simply paid no attention to the constitutional requirements. As Justice Kandakasi observed, it was ‘inserted without any proper consideration or thought’.

Moreover, as to the requirement that a law be ‘reasonably justifiable in a democratic society’, s 38 also added that the burden of proof ‘is on the party relying on its validity’. But the PNG government had never made any attempt to discharge this burden.

Back in 2014 the Court had ordered the parties to ‘discuss and settle’ an agreed statement of facts, and the applicant had filed a draft statement accordingly. But the government parties had refused to discuss it, or to file any countervailing statement.

For Justice Kandasaki, a noted advocate of conflict management through negotiation and mediation, this absence of any attempt at agreement was particularly galling. And it meant that the statement of facts submitted by the applicant must be accepted as unchallenged. It also meant that the government had failed to discharge its burden of proving that paragraph (ga) was ‘reasonably justifiable in a democratic society’.

That was enough to dispose of the case; but in fact the judgments went further.

Under s 39 of the Constitution the question whether a law is ‘reasonably justifiable in a democratic society’ is to be answered by reference to a wide range of materials including the United Nations Charter, the Universal Declaration of Human Rights, and ‘any other material that the court considers relevant’. The Court noted that the United Nations High Commission on Refugees had criticised the Manus Island arrangements for their lack of ‘basic conditions and standards’, ‘the closed detention setting and the lack of freedom of movement’, and ‘the absence of an appropriate legal framework and capacitated system to assess refugee claims’. On this ground too, it would be hard to conclude that the inclusion of paragraph (ga) was ‘reasonably justifiable’.

Yet the Court also noted that even if paragraph (ga) had been valid, it would not have been effective. This was for the reason already noted: the enumerated paragraphs in s 42 do not themselves operate directly to authorise restrictions on liberty; they merely enable the Parliament to do so by appropriate legislation. But no attempt to give effect to paragraph (ga) by specific legislation had ever been made.

The PNG Supreme Court and the principle from Chu Kheng Lim

More significant than any of this for Australia was a final point added by Justice Higgins on the relevance of a principle repeatedly insisted on by the Australian High Court – initially in 1992 in the Chu Kheng Lim case, often erroneously referred to as ‘the Lim case’.

In that case the Court acknowledged that custodial detention is usually a form of punishment, and can only be imposed by a court. It recognised that there are exceptions to that general principle, and that the detention of asylum seekers falls within such an exception – provided it is for the purpose of assessing their claims to refugee status, or arranging for their deportation if that claim is rejected. But the Court has repeatedly stressed that this proviso must be taken seriously.

The version that Justice Higgins relied on last Tuesday was taken from the High Court judgment in 2014 striking down the ministerial misuse of a ‘temporary safe haven visa’. The detention of asylum seekers was lawful, said five members of the High Court in that case, only if it was ‘limited to what was reasonably capable of being seen as necessary for the purposes of deportation or to enable an application for permission to enter and remain in Australia to be made and considered.’

What Justice Higgins did was to apply a similar principle to s 38 of the PNG Constitution: detention for the purposes specified in paragraphs (a) to (h) is permissible only if it is strictly confined to what is reasonably necessary for those purposes.

But the High Court has continued to apply the same principle in Australia – most recently, in February this year, when a challenge to the validity of the ‘Nauru solution’ was dismissed because retrospective legislation, introduced after the challenge was brought before the High Court, had excluded what might otherwise have been a serious constitutional question, by specifically authorising the Commonwealth to undertake ‘any action’ in relation to ‘the regional processing functions of a country’.

The judgment of French CJ, Kiefel and Nettle JJ in that case, while accepting the legislation as valid, stressed that it was effective to authorise Commonwealth participation in an overseas processing regime ‘only … if, and for so long as, it serves the purpose of processing’. The legislation does not enable the Commonwealth ‘to support an offshore detention regime which is not reasonably necessary to achieve that purpose’. If the legislation were thought to authorise support for ‘an offshore detention regime which went beyond what was reasonably necessary for that purpose’, the legislation might no longer be valid.

All of the other judgments made a similar point: the detention of asylum seekers is valid only so long as it is ‘reasonably necessary’ for the purpose of processing their claims.

The inadequacy of Australia’s response

The Minister for Immigration, Peter Dutton, has reacted to the PNG decision with his usual mixture of defiance, denial, and delusion; and the shadow minister, Richard Marles, has suggested that there would have been no problem if the Manus Island scheme had worked as efficiently as it would have done under Labor. But neither of them has faced up to the full implications of the High Court’s insistence that detention is valid only so long as it is ‘reasonably necessary’.

It might possibly be construed (as the latest PNG decision has already been construed) as a hint to detainees that they might be entitled to damages for false imprisonment. It can certainly be read as a warning to the Turnbull government that the nightmare of its war against refugees cannot be allowed to drag on for much longer.

Tony Blackshield is an Emeritus Professor of Law at Macquarie University, a Visiting Professorial Fellow at the University of New South Wales, and an Honorary Professor of the Indian Law Institute in New Delhi.

Suggested citation: Tony Blackshield, ‘PNG’s Supreme Court and Manus Island’ on AUSPUBLAW (28 April 2016) <https://auspublaw.org/2016/04/pngs-supreme-court-and-manus-island/>