Australia’s agreement with Papua New Guinea to run the regional processing centre on Manus Island is legal, even if it is illegal under PNG law, the High Court has ruled.
In a unanimous decision, the full bench of the High Court rejected a case to have the transfer and detention of an asylum seeker by Australia to Manus Island declared illegal.
It is the latest in a number of Australian court cases that have unsuccessfully challenged the legality of the country’s offshore detention centres.
In April last year, PNG’s highest court declared the country’s agreements with Australia to send and detain asylum seekers to the Manus detention centre as “unconstitutional” and “illegal”.
The PNG ruling led Iranian Beham Satah to challenge the constitutional legality for Australia’s immigration minister to designate PNG as a regional processing country, make agreements to that effect, and to transfer and hold him on Manus.
“The plaintiff submitted that the Constitution denies to the Commonwealth any legislative or executive power to authorise or take part in activity in another country which is unlawful according to the domestic law of that country,” the High Court judgement summary said.
The PNG Supreme Court decision, known as the ‘Namah’ case, saw the PNG government order the detention centre be shut and it is due to close at the end of October.
“The High Court held that neither the legislative nor the executive power of the Commonwealth is constitutionally limited by any need to conform to the domestic law of another country and that the past and future actions challenged by the plaintiff were not invalid or precluded,” the High Court’s judgement summary said.
“The Court also held that, even if the MOU [Memorandum of Understanding] and the Regional Resettlement Arrangement were beyond the power of PNG under its Constitution, each remained an “arrangement” within the scope of s198AHA [of Australia’s Migration Act] because the authority conferred by that section does not depend upon the lawfulness of government action under the law of a foreign country.”
Dr Sangeetha Pillai, Senior Research Associate at the Kaldor Centre for International Refugee Law said it builds on “previous authorities that have established that the constitutional validity of Commonwealth legislation and executive action is not limited by international law”.
“Importantly, this doesn’t mean that where the Commonwealth acts in violation of foreign law there will be no consequences, simply that invalidity under Australian constitutional law is not one of these consequences,” she said.
“Depending on the circumstances, other consequences that might arise include political consequences, international law sanctions, or civil or criminal penalties for Commonwealth officers in the foreign country concerned.”
Mr Satah was sent to Manus from Christmas Island in August 2013, after arriving by boat, and was found by PNG’s immigration minister not to be a refugee last December.
He refused to take part in the PNG assessment of his asylum claim, fearing resettlement there could lead to reprisals over his crucial evidence in the trial over the murder of refugee Reza Barati.
Mr Barati was killed by guards in the Manus detention centre on February 2014 during a riot and Mr Satah’s evidence resulted in the conviction and jailing of two PNG nationals for 10 years.
Mr Satah refuses to return to Iran and the country does not accept involuntary repatriations, so PNG cannot deport him.