PACIFIC CONSTITUTIONS RESEARCH NETWORK CONFERENCE LIBERTY OF PERSONS UNDER THE PAPUA NEW GUINEA CONSTITUTION – A CASE STUDY OF THE SUPREME COURT ON THE MANUS ISLAND DETENTION CENTRE MICHAEL EFI SENIOR LEGAL OFFICER OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA

CONTENTS Abstract Introduction Political Agenda Constitution Section 42 – Liberty of the Person Supreme Courts Pronouncements on the Amended Law, s. 42 (1) (ga) Effect of the new Amendment to Section 42 of the Constitution Lessons Learned

1 Abstract Liberty of Persons under Section 42 of the Constitution and subsequent amendment by Parliament to legitimize an arrangement made between the Government of Australia and Papua New Guinea regarding the detention and processing of asylum seekers. This arrangement caused political controversy and as well as questions on the constitutionality of the amendments. Focus on the Courts reasons in declaring this amendments unconstitutional and implications going forward.

2 Introduction There is this international problem that most, or more exactly the developed countries face, i.e migration of people. These migratory movements of people is a result of various factors such as leaving their home nation due to persecution, seeking better living standards. Most migrants are either classed as refugees or asylum seekers. Australia is one country faced with these influx of people, especially asylum seekers. Given its strict immigration policies, it needed a mechanism to control this problem.

Introduction…cont’d Pacific Solution or Pacific Strategy - The idea behind this solution or strategy was to intercept asylum seekers arriving on board unauthorized maritime vessels and transferred to off-shore processing centres in Nauru and Manus Island, Papua New Guinea. Through this Pacific Strategy, the Government of Papua New Guinea entered into two Memorandum of Understandings with the Government of Australia to establish an off-shore processing facility and in return, PNG would benefit from monetary and other considerations

3 Political Agenda In pursuit of arrangements made through the MOU by both Government of PNG and Australia, the Foreign Affairs and Immigration Minister at the time, approved and granted under section 20 of the Migration Act to keep the asylum seekers in PNG under detention. Section 20 Migration Act relates to exemptions in which the Minister may, by instrument under his hand, exempt— (a) a person or a class or description of persons; or (b) a conveyance or class or description of conveyance, either absolutely or conditionally, from all or any of the provisions of this Act.

4 Constitution Section 42; Liberty of the Person Following the decisions to accommodate asylum seekers destined for Australia, a lot of dissenting views arose from the Opposition Government, the public, NGO’s concentrated mainly the violation of the asylum seekers human rights and in particular the liberty guaranteed under the Constitution. Specific provision for interpretation and application is Section 42 (1) (g) prior to amendment was in the following terms; “No person shall be deprived of his personal liberty except for the purpose of preventing the unlawful entry of a person into Papua New Guinea, or for the purpose of effecting the expulsion, extradition or other lawful removal of a person from Papua New Guinea, or the taking of proceedings for any of those purposes.” To avoid this mounting opposition, Parliament or rather the Government rushed through an amendment to this provision.

Constitution Section 42; Liberty of the Person The amended provision after 2014 read as follows; “No person shall be deprived of his personal liberty except (ga) for the purposes of holding a foreign national under arrangements made by Papua New Guinea with another country or with an international organization that the Minister responsible for immigration matters, in his absolute discretion, approves.” With this amendment, the Courts were tasked to determine, firstly whether the constitutional amendment is unconstitutional and therefore invalid; and does this amended provision, section 42 (1) (ga) apply to asylum seekers?

5 Supreme Court’s Pronouncement on the Amended Law, s. 42 (1) (ga) First issue; Supreme Court held (Per Kandakasi, J) “it is settled law that, it is not sufficient to say the law is to regulate or restrict a right or freedom. Instead, it must meet all of the above requirements, which goes into the formal parts of the law and in substance. Of these requirements, I am of the view that, the need to demonstrate that the law is one which is reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind is most important. The reasons for that importance is simple. Although all humans are born with all of their rights and freedoms, some suppressive regimes and or governments deny the people of their rights or freedoms over the years, until they got restored as nations evolved from their stone ages to modern democracies”.

Cont’d Requirements referred to are Sections 32-49 (Fundamental Human Rights & Freedoms), 50-56 (Basic Principles of Government), 13 (Amendments/Alterations of Constitutional Law) and 14 (Passing of amended constitution law by two thirds majority) of the Constitution. Amendment failed to specify the purpose of the amendment, the rights that may be regulated or restricted. It also failed to indicate that such regulation or restriction is reasonably justifiable in a democratic society have in a proper respect for the rights and dignity of mankind.

Cont’d The second issue, the Supreme Court Held was that “the amendments do not say anything about the manner and form of the detention. The human rights and dignity of the detainees or the asylum seekers which are guaranteed by relevant provisions of the Constitution need to be respected. The amendment does not specifically say and does not in fact qualify any asylum seekers right” The Court further pronounced that “an Act of Parliament would have to elaborate on what is provided for in s. 42 (1) (ga) , and provide for the manner and form of detention, its purpose and make enough provision to render the detentions reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind. The Act of Parliament that needed amendment to correspond to the constitutional amendment was the Migration Act.

Cont’d Sections 3, Migration Act prohibits entry of persons into PNG without an entry permit unless exempted under Section 20 of the same Act. Section 7, Migration Act provides for a unlawful presence in the Country. This statutory provisions did not correspond to the Constitutional amendment made to section 42 (1) (ga). Minister exempted asylum seekers from these provisions, and allowed transfers per the MoU’s and a Ministerial directive pursuant to section 15 C of the Act. An attempt at making the arrangement legal.

Cont’d The Supreme Court decided that the amendment cannot apply for the following reasons; Ministerial directive under section 15C of the Act applies to Refugees, and The Ministerial directive is silent on the detention of asylum seekers. No law to indicate regulating or restricting the rights and freedoms of asylum seekers. Therefore in the absence of any other law restricting or qualifying the rights of a person lawfully in the country, the rights and freedoms guaranteed by the Constitution must be respected.

6 Effect of the new amendment to Section 42 of the Constitution The amendment rendered the following results; Forceful transfer and continued detention of asylum seekers by PNG and Australia Minister responsible for Immigration had the absolute discretionary powers of approval. Powers subject to potential abuse as provisions in the Migration Act relating to entering the country without a permit or an exemption and remaining without either of them, would not exist. Amendment was made in relation to Citizenship, nothing to do regulating or restricting rights of persons in a “reasonably justifiable democratic society having a proper respect for the rights and dignity of mankind”. It is unclear how the provision on personal liberty corresponds with a law intended for dual citizens, hence rights of citizens.

Cont’d The amendment does not specifically qualify asylum seekers rights. Migration Act if amended would have catered for the specific provisions qualifying the rights of an asylum seeker. This is not the case with this amendment made to the Constitution.

7 Lesson Learned Moving on from the judicial pronouncement, amendments of any constitutional law regarding fundamental and basic rights of persons (citizens/non-citizens) must be consistent. Supreme Court’s decision placed a check and balance system on the legislative body’s law-making body Administrative international arrangements, ensure constitutional provisions on fundamental rights, general principles of human rights take precedence irrespective of political interests. International arrangements regarding mutual assistance take into consideration rights of persons as human beings. Regard must be given to the fundamental Human Rights principles in changing laws and not due to political agendas.