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  • The Supreme Court of Justice of Papua New Guinea has unanimously held that detention in the Manus Island Regional Processing Centre is contrary to the Papua New Guinea Constitution.
  • The court found that the prospect of indefinite detention during offshore processing engages the human rights to free movement and personal liberty.
  • The judgment agitates claimed breaches of a duty of care by Australia and liability for damages for false imprisonment.

In Belden Norman Namah, MP Leader of the Opposition v Hon. Rimbink Pato, Minister for Foreign Affairs & Immigrations & Ors (SC1497, SCA No 84 of 2013), the Supreme Court of Justice of Papua New Guinea (PNG) unanimously held that detaining asylum seekers in the Manus Island Regional Processing Centre (the Centre) was unconstitutional. This case note reviews the judgment and considers several implications.

The judgment

The Bill of Rights in the PNG Constitution provides that every ‘citizen’ has the right to move freely throughout the country (s 52). Every ‘person’ (irrespective of citizenship) has the right to personal liberty (s 42(1)). The latter right is qualified by detention for the purpose of preventing the unlawful entry of a person into PNG or to effect their expulsion (s 42(1)(g)). This qualification did not apply because:

(i) the detainee’s destination was Australia; and (ii) asylum seekers were issued entry permits under PNG migration legislation.

A 2014 constitutional amendment authorised detention for the purposes of holding a foreign national under arrangements made by PNG with another country or an international organisation approved by the Minister for Foreign Affairs (s 42(1)(ga)). This amendment was adjudged invalid for non-compliance with s 38 of the Constitution, namely that this restrictive law did not demonstrate proper respect for the rights and dignity of mankind, serve the public interest in specified ways, was not expressed to be a law made for that purpose, and did not specify the right or freedom that was regulated or restricted.

The introduction of s 42(1)(ga), according to PNG Judge Kandakasi, lacked ‘any proper consideration or thought’ (at [53]). Nor had the PNG government made any attempt during the proceedings to challenge the applicant’s statement of facts (at [117]).

Furthermore, no effort had been made to enact specific legislation which authorised restrictions on liberty under s 42(1)(ga) (at [22]).

The Australian judge Terence Higgins, formerly Chief Justice of the Supreme Court of the Australian Capital Territory, considered that treating detainees as prisoners irrespective of their circumstances or their status save as asylum seekers offended their rights and freedoms guaranteed by the PNG Constitution (at [117]); see also Judge Kandakasi at [69]). Detention was permissible only if strictly confined to what was reasonably necessary for a constitutionally-authorised purpose (at [89]; citing Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] 253 CLR 219). An additional consideration was whether detention conditions damaged the rights and dignity of detainees or caused physical or mental suffering (at [118]).

The Australian and PNG governments were ordered to ‘forthwith take all steps necessary to cease and prevent the continued unconstitutional and illegal detention’ of asylum seekers as well as the ‘continued breach’ of their constitutional and human rights (at [74(6)]).

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