In a significant decision that quickly reverberated through political circles, last week the Supreme Court of Justice of Papua New Guinea rebuked Australia’s practice of housing its immigration prisoners in the small Pacific island nation. Namah v. Pato, No. SC1497 (PNG April 26, 2016).
For years Australia has paid PNG to host and operate camps where migrants hoping to request asylum in Australia are forcibly taken and confined at the Manus Island Processing Centre (MIPC). “[M]en, women, and children,” the court explained, are brought “under Australia Federal Police escort and…held at the MIPC against their will. The MIPC is enclosed with razor wire and manned by security officers to prevent the asylum seekers from leaving the centre. All costs are paid for by the Australian government.” ¶ 20.
Though I am not familiar with PNG legal procedures or substantive law, the court’s conclusion about the legality of imprisonment is unmistakable. As the court put it, “the forceful bringing into and detention of the asylum seekers on MIPC is unconstitutional and is therefore illegal.” ¶ 39. An amendment to the PNG immigration laws intended the facilitate the government’s ability to bring in migrants under precisely this arrangement with Australia, the court added, did not save the imprisonment practice. Instead, the court held that the government failed to show that bringing the migrants to PNG solely to detain them was “reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind,” a requirement of PNG constitutional law. ¶ 54
One day after the PNG Supreme Court’s decision was released, PNG Prime Minister Peter O’Neill said the prison would close. Media reports indicated that government officials expected this to happen soon, perhaps even within four days of the Supreme Court’s announcement. Those migrants among the roughly 850 people held at the MIPC who were “deemed to be legitimate refugees,” Prime Minister O’Neill said, “we invite them to live in Papua New Guinea.” For its part, Australian officials showed no inclination of allowing migrants to enter the country.
Though Australia’s reliance on offshore immigration prisons is notorious, it is not alone. Individual European countries have taken a similar approach. In recent weeks, the European Union as a body has worked with Turkish officials to deport migrants who have reached Greece where they will likely end up detained for some time, perhaps at an EU-funded site. The United States is not exempt. Indeed, as Michael Flynn wrote in a 2014 paper, “it is the United States that has been the world’s pioneer in offshore interdiction and detention.” Last week’s major development in PNG, then, offers an instructive path for migrants and advocates pushing back against government efforts to expand the number of people locked up for daring to migrate without state permission.
Find this information helpful? Learn more from Crimmigration Law, César’s book.