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.
"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."
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,