DownUnderAllOver: Developments around the Country
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DownUnderAIIOver
Developments around the country
FEDERAL
Implications of the PNG Supreme Court decision
on offshore detention
In April 2016, the highest court in Papua New Guinea found
(in a unanimous decision) that detention of refugees and
asylum seekers in its Australian-funded 'processing' centres
is unconstitutional, Namah v Pata [2016] PJSC 13 (26 April
2016). Although the Supreme Court decision is not directly
enforceable under Australian law, it will have significant legal
and political implications for the continuing operation of
Australia's offshore processing centres.
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.
Repayment of social security debts
The Social Services Legislation Amendment (Enhanced Welfare
Payment Integrity) Bill 2016 (Cth) ('the Bill') was introduced
into the House of Representatives on 2 March 2016 by the
Minister for Social Services and has been under inquiry by the
Senate Community Affairs Legislation Committee. The Bill and
inquiry have now lapsed as a result of the election being called;
however, they may be re-introduced after the election.
The Bill provides the Secretary of the Department of Social
Services with the power to issue Departure Prohibition Orders
('DPOs') on individuals travelling overseas who have unpaid
welfare debt (under the family assistance, paid parental leave,
social security and student assistance schemes) and have not
made 'satisfactory arrangements' for repayment.
As Ms Sarah Henderson MP noted in her speech on the Bill,
the average value of social welfare debt is around $2350
and the average length of the debt is just over three years.
Approximately 270 000 former recipients of social welfare
payments do not make sufficient or regular payments and
together they owe around $870 million to the Commonwealth.
This is the group being targeted by the Bill.
The Bill requires the Secretary to have regard to the capacity
of the individual to repay the debt and any previous actions
or attempts to repay the debt. An individual subject to a DPO
may apply for a Departure Authorisation Certificate ('DAC')
to be granted if they provide adequate security or if there are
humanitarian grounds or where refusing to issue the certificate
would be detrimental to Australia's interests.
If an individual breaches a DPO by travelling overseas without
a DAC they may be subject to a criminal offence under the](ViewImageLocal?handle=hein.journals/alterlj41&div=44&collection=&method=preview&ext=.png&size=3)
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DownUnderAllOver: Developments around the Country
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