Picture courtesy of bbc.com
As a lawyer and person concerned with social justice and the rule of law I have watched with a mixture of interest and dread the recent machinations both here and abroad over Australia’s overseas detention camps.
These camps were originally established as offshore processing centres, to manage the influx of asylum seekers bound for Australia. In reality, very little processing is done at these camps. Virtually no resettling of refugees occurs in the host country or any other country. They have become detention centres where refugees are kept for indefinite periods of time.
These camps predominantly on Manus Island and Nauru are operated by Australian contractors, such as Transfield. The contractors and the host countries are paid $millions by the Australian government to keep the camps operational and to keep the refugees away from our shores.
In recent times the highest courts in two countries have ruled on the legality of these camps. The Australian High Court ruled that Australia’s detention camps in Nauru and the agreements between the Australian and Nauruan governments to establish and operate these camps are valid and supported by the Australian Constitution.
On the other hand, the Supreme Court of Papua New Guinea (PNG), has held that the Australian government’s camp on Manus Island was not supported by the PNG constitution and therefore needs to be closed.
How two different nations could arrive at opposite conclusions on the same issue is instructive.
The Australian decision concerned a Bangladeshi woman known as plaintiff M68 who had been brought to Australia from Nauru for medical treatment late in her pregnancy. Her child was born here. She had a baby daughter. She effectively represented 37 babies born in Australia but condemned to indefinite detention in the squalid conditions on Nauru (and Manus Island).
The case brought by the Human Rights Law Centre challenged the validity of the commercial arrangements that established and operated these camps and the constitutional support, if any, for these arrangements.
Even though the proceeding had been on foot for several months, in mid 2015 there was a sense of panic in the government’s ranks, when it became apparent that their defence of this challenge was not certain. Under the law as it stood, the Australian government stood to lose this case and throw into doubt their multi-billion dollar arrangements in Nauru and possibly PNG.
The solution was to pass wide-sweeping retrospective legislation to ensure the government’s tracks were covered, back to 2012.
So it came to pass, that on a cold wintry day in June 2015, the Abbott government introduced and passed an amendment to the Migration Act. The date, 25 June 2015, will go down in history as the infamous night that s198AHA became law. I say “night” because despite Parliament’s busy schedule (what ever happened to legislation enshrining equal marriage rights for all citizens??) s.198AHA passed both Houses of Parliament in under 24 hours. The amendment was passed with bipartisan support, just 4 months before the case was to be argued before the High Court.
The unsettling aspect of this manoeuvring by the government was the sheer breadth of this amendment. What does section 198AHA say?
“(1)This section applies if the Commonwealth enters into an arrangement with a person or body in relation to the regional processing functions of a country.
(2)The Commonwealth may do all or any of the following:
(a)take, or cause to be taken, any action in relation to the arrangement or the regional processing functions of the country;
(b)make payments, or cause payments to be made, in relation to the arrangement or the regional processing functions of the country;
(c)do anything else that is incidental or conducive to the taking of such action or the making of such payments.
(3)To avoid doubt, subsection (2) is intended to ensure that the Commonwealth has capacity and authority to take action, without otherwise affecting the lawfulness of that action.
(4)Nothing in this section limits the executive power of the Commonwealth.
(5)In this section:
(a)exercising restraint over the liberty of a person; and
(b)action in a regional processing country or another country.
arrangement includes an arrangement, agreement, understanding, promise or undertaking, whether or not it is legally binding.
regional processing functions includes the implementation of any law or policy, or the taking of any action, by a country in connection with the role of the country as a regional processing country, whether the implementation or the taking of action occurs in that country or another country.” (my emphasis)
I despair when I read such unfettered expansion of government control over individuals. Read it carefully. The government can take any action or do anything it pleases, in respect to its detention camps either here or overseas even if such action deprives a person of their liberty; open-ended without any restrictions or oversight and retrospective.
In February, this year the High Court in a 6-1 decision held that the government’s detention camps on Nauru were valid and legitimate by reason of s.198AHA and always have been since 2012. Further, s.198AHA was valid under the Australian Constitution.
The High Court ruled that once asylum seekers are relocated in another country they were out of reach of Australian law. Only Justice Gordon in her dissenting judgment, was prepared to acknowledge Australia’s control over these operations, the funding of these camps with Australian dollars and the extensive control over the Nauruan government exercised by our government.
The following day, Daniel Webb from HRLC had the unenviable task of telling mother M68 that she and her daughter, now a year old, had to return to an uncertain future on Nauru.
But the Turnbull government’s euphoria was only to last a couple of months because across the waters to our north an important case was working its way through the justice system in PNG. Sometimes forgotten, the case commenced in 2013 by PNG’s opposition leader Belden Norman Namah, sought to challenge the constitutional validity of Australia’s detention camps on Manus Island.
The camps that were reopened to human traffic in 2012, ostensibly to process asylum seekers, saw virtually little, if any, processing activities and became inhumane camps of indefinite detention. Namah was concerned at the violence shown towards detainees, the levels of self-harm and suicidal ideation expressed by refugees. There was not one but two cases of self immolation, detainees setting themselves on fire.
The PNG’s defence of this challenge was funded by the Australian government.
As happened in Australia, and no doubt, on advice from the Australian government, the PNG government also passed (last minute) legislation to improve its position in the challenge before the Supreme Court.
The PNG constitution is of more recent origin than the Australian constitution. It is a modern document a creation of the the 20th Century rather than the 19th Century.
Unlike the Australian constitution the PNG constitution contains a charter of human rights. Section 42 of the PNG constitution provides that no person may be deprived of his personal liberty. Pretty simple if not elegant.
Despite the machinations of the PNG government to maintain the Australian camps, in what was a courageous decision (given the $millions injected into the PNG economy through these camps), the Supreme Court unanimously held that the camps were unconstitutional and should be closed.
Two countries, same issue, different results. All plaudits to the PNG Supreme Court. PNG can hold its head high in international human rights circles.
Australian law remains the law and must be respected. But the process followed by our politicians, the breadth of the relevant amendment, its deliberate attack on human rights ie “”exercising restraint over a person’s liberty”, its retrospective nature should provide cause for pause.
Where will such flagrant disregard for basic human rights end? In the back of our minds, we say “But it will never affect me?” Are you sure?
How is it that we are subject to a law that in most common law jurisdictions would be viewed as offensive and excessive legislation.
Isn’t it strange that PNG should be handing Australia a lesson in human rights and social justice?