Paying for stopping the boats


“You would expect PNG to seek some undertakings from Australia to cover these costs given that it was pressure from Australia that led to the current situation.”

This week we learnt that the human rights protection for asylum seekers in our former colony Papua New Guinea are more protected by the PNG constitution than they would be in Australia.

The Supreme Court of Justice of Papua New Guinea ruled unanimously that the asylum seekers in the Manus Island Processing Centre (MIPC) were unlawfully detained. The court was very clear on who was responsible for this unlawful detention:

‘It was the joint efforts of the Australian and PNG governments that has seen the asylum seekers brought into PNG and kept at the MIPC against their will.

‘These arrangements were outside the constitutional and legal framework in PNG … The forceful bringing into and detention of the asylum seekers on MIPC is unconstitutional and is therefore illegal.’

What will happen to the asylum seekers is still unclear, as the Australian Immigration Minister has steadfastly refused to allow them to return to Australia, even to face the watered down refugee determination process that now operates for those who arrived by boat.

The process called ‘Fast Track’ is designed to reduce the chances of winning a case by making refusals easier to make and harder to challenge in the courts. No longer is there a requirement to have a hearing on review, and the review authority, the Immigration Appeals Authority (IAA), is directed by the Migration Act not to consider any new information unless exceptional circumstances apply.

The PNG government has quickly moved not to change the law and constitution, but to make arrangements to close the centre and ask Australia to take back the asylum seekers. Already PNG lawyers are talking about claims for compensation for the unlawful detention, and rightly so.

One wonders if considerable money has been tentatively put aside in the forthcoming budget for the compensation of all those affected by the unlawful actions in PNG.

Already Australia has paid vast sums to detain people unlawfully in PNG, and PNG has no capacity to pay any compensation. You would expect PNG to seek some undertakings from Australia to cover these costs given that it was pressure from Australia, most recently from the second Rudd government, that led to the current situation.

Hopefully PNG will not copy Australia’s poor record on compensating asylum seekers for unlawful detention. Back in May 1992, the Labor government changed the law on detention of Cambodians two days before the hearing in the Federal Court seeking their release. The later High Court decision of Chu Kheng Lim in 1992 found the detention to be unlawful until the change.

The response of the government was not to negotiate compensation for their unlawful action in detaining the Cambodians, but to legislate to limit any compensation payments to $1 a day. By way of justification, a Labor senator told me this was ‘a lot of money in Cambodia’.

Later the Migration Act was amended yet again to retrospectively change the law so that no compensation could be paid. A similar change was made in 2001 at the time of the Tampa to retrospectively ‘legalise’ any ‘unlawful’ actions by Commonwealth officers when we were saved from the Tampa refugees by the SAS.

Since then, others who have been unlawfully detained and later compensated include Cornelia Rau and Vivian Solon-Alvarez. However neither of these people were asylum seekers — Ms Rau was a permanent resident and Ms Solon-Alvarez a citizen. They were rightly compensated; asylum seekers were not.

Given the tough-guy position of Australia, it is possible that rather than properly compensating those who were unlawfully detained, our government will prefer to spend millions of dollars on finding other poor countries to accept those who we have vilified for coming across the seas seeking protection.

Labor did this to the Cambodians, and I cannot imagine the Coalition wanting to be seen as less hardline. Government will readily pay millions to multinational companies to manage the detention centres, but will be reluctant to make any payments to the asylum seekers for unlawful detention.

The default position of both the Coalition and Labor is always to say that the hardline policies must be maintained or people will again be dying at sea. Having played their perceived trump card, no other discussion or debate seems to be needed. But clearly it is.

This week we saw on 4 Corners how bureaucrats were delaying lifesaving medical treatment because they were not satisfied it was warranted. This was despite the opinions of medical experts. Then an Iranian self-immolated on Nauru, a terrible act of despair.

The system reactivated under Labor and reinforced under the Coalition is not only coming undone, but inflicting serious harm on those who are seeking protection.

While I do not think that someone is entitled to stay just because they arrive by boat, I do think that asylum seekers are entitled to a fair and transparent assessment of their cases without being vilified and punished.

Maybe we can learn from the PNG Supreme Court which stated: ‘The human rights and dignity of the detainees or the asylum seekers which are guaranteed by the relevant provisions of the Constitution need to be respected.’ Sadly we have no such protections in our Constitution. The former colony of PNG has better constitutional protections of human rights than that of their former colonial master.

Kerry Murphy is a partner with the specialist immigration law firm D’Ambra Murphy Lawyers and member of the boards of the IARC and JRS.

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