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PNG High Court ruling: Detention on Manus Island violates Human Rights

Tuesday, 3 May 2016  | Paul Tyson

After years of legal argy bargy, the PNG High court has handed down its judgement on the constitutionality of the Manus Island Detention Centre. Its decision: a unanimous rejection of this secretive arrangement between the ‘boarder protection’ agendas of the Australian government and unconstitutional foreign capital seeking interests in PNG politics. Manus Island Detention Centre has been ordered to close immediately.

Because Universal Human Rights are enshrined in the PNG constitution (unlike the Australian constitution), it was clear from the very beginning that the Manus Island Detention Centre was unconstitutional and would not survive being challenged in the High Court. The deal between successive Australian governments and the PNG government to indefinitely detain asylum seekers arriving by boat, and to make it clear that even legitimate asylum seekers within this system of offshore detention would never be accepted by Australia, is a clear abrogation of the Human Rights of those asylum seekers under the UNHCR convention to which both Australia and PNG are signatories. However, Australia and PNG approach the relationship between their UNHCR obligations and the laws of the land in very different ways.

To Australia, being a signatory of the UNHCR is a foreign policy commitment that seems to be outside of the terms of Australian law. Hence, since the Howard years, Australian governments have radically modified Australian immigration laws, giving our governments power to decide which asylum seeker claims we will consider, which asylum seeker claims we will indefinitely ‘process’, and which asylum seekers claimants we will definitely refuse to grant asylum, whether they have legitimate claims or not. Charitably one might say that Australia treats its UNHCR commitments with considerable flexibility. Actually, it is clear that placing conditions on the unconditional right for asylum seekers to seek asylum in signatory nations – no matter how they arrive – is a serious abrogation of Australia’s responsibilities as a signatory.

PNG law, unlike Australian law, does not allow Human Rights to be legally abrogated. Australian negotiators cannot have failed to know this when they secured PNG’s offshore detention assistance, firstly under the Rudd government. The outcome of this PNG High Court ruling, then, can also have been no surprise to the Australian government. Clearly the Australian government has opportunistically used the appeal of injecting foreign capital to seduce the PNG government to act contrary to its own constitution, so as to facilitate the Australian government in acting contrary to its UNHCR obligations. This is scandalous in every way.

The main power blocks in Australia politics – the ALP and Coalition – show no signs at all of even blushing now that the Manus Island game is up. No, they are ‘stranding firm’ on the supposed moral high ground of their refusal to honour their UNHCR obligations. Of course, it is not framed like that. It is framed like this: for profoundly humanitarian reasons Australia refuses to honour our UNHCR obligations to these ‘unlawful arrival’ asylum seekers, because we are concerned for their safety at sea and we hate those despicable people smugglers who trade in desperation and misery. We are told that only strong border protection could be good for these asylum seekers, even though strong border protection means that only asylum seekers who can get on planes with at least apparently valid documents will ever have their claims considered by Australian immigration authorities. This means that the Australian government has decided that the most vulnerable asylum seekers on the globe – including the people on Manus Island and Nauru – will never be helped by Australia. And yet, the Australian government also wants to claim that it is out of humanitarian compassion for those very excluded people that we must ‘stand firm’ with this offshore detention policy.

Let us call a spade a spade. Everyone knows that Australia’s ‘Border Protection’ agenda is the opposite of compassionate towards people who get on boats to lodge an asylum claim in Australia. ‘Border Protection’ is a tough deterrence policy that wants to make the experience of asylum seekers in an offshore Australian detention facility as harrowing as possible, and which explicitly promises to make their claims for asylum in Australia hopeless. In real terms, it is the boat people themselves we have criminalised and demonised, and it is against them that we have uncompromisingly ‘stood firm’ in refusing to open our hearts with human compassion to their plight. People smugglers and drownings at sea are just a convenient propaganda opportunity that grants us a delusional moral fig leaf to place over our callous indifference to the plight of vulnerable asylum seekers. It is in protection of this ridiculous moral fig leaf that our politicians are all ‘standing firm’ and will not take any refugees from Manus Island. The fact is, since the post 9/11 new climate of externalised fear, both major party blocks have used the ‘border protection’ idea to explicitly harden the Australian heart to the world’s most vulnerable people in order to play to the invasion fears and collective insecurities of the Australian electorate. That is what is really going on here.

When, I wonder, are we ever going to be ashamed about our opportunistic and self-interested manipulation of our neighbours, and our scapegoating lack of compassion for asylum seekers? If we cannot even feel shame over these matters, then our nation is at a very low moral ebb.

Come on Aussie! Do the right thing. Or at the very least, blush.

Paul Tyson is an honorary research fellow at the University of Nottingham, an author and a columnist for Zadok Perspectives.

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