Section 42(g) of the PNG Constitution sets out a right to liberty. It lists exceptions to this, which include detention for the purpose of preventing the unlawful entry of a person into Papua New Guinea. The reference to 'unlawful entry' was pivotal to the case, as the Court found that the 'transferees' did not enter PNG or remain there of their own accord but were transferred forcibly as lawful entrants. Therefore the court held that they do not come within the exception in Section 42(g).
The court also considered a 2014 amendment to the PNG Constitution, which was passed in response to the commencement of the Supreme Court litigation in question. Section 42(ga) provides that deprivation of liberty is permitted for 'the purposes of holding a foreign national'. Importantly, Section 38 of the PNG Constitution also sets out general human rights principles which may render an act unlawful. One clause says that a restriction of a right may be unlawful if it is 'not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind'.
Again, the unanimous, five member bench of the Supreme Court of PNG found the 2014 Constitutional amendment to be unlawful, specifically stating that the 'human rights and dignity of the detainees or asylum seekers which are guaranteed by the relevant provisions of the [PNG] Constitution need to be respected'. The court underlined that the treatment of the transferees was not 'reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind' pursuant to Section 38 of the Constitution. Significantly the court considered broader material than PNG law in coming to this conclusion, including the United Nations High Commissioner for Refugees ('UNHCR') Detention Guidelines, the 1951 Refugee Convention and a damning report of the UNHCR addressing the Manus Island processing centre in 2013.
This judgment is therefore important for recognising that asylum seekers have a right to liberty like any other person. It is also illustrative of the power of having a Bill of Rights in a domestic constitution and a court willing to interpret that to protect asylum seekers as human beings entitled to human rights.
Following the decision of the court, PNG authorities indicated they would comply with the court order and close the detention facility. However Australia's response has been to persuade PNG to 'work around' the Supreme Court decision. Thus, on 12 May 2016 it was reported that the Manus Centre had been 'opened up'. However it appears that there is still some restriction of movement as the asylum seekers only have the ability to leave the detention centre under certain conditions. Therefore it is uncertain as to whether this response complies with the court orders in the Namah case. In particular, there is a broad 'right to freedom' in Section 32 of the PNG Constitution which could be used to challenge the arrangement in further litigation.
MARIA O'SULLIVAN teaches law at Monash University.