PNG Supreme Court rules Australian “Guantanamo” illegal

Nick G.

By unanimous decision of the Full Bench of the Papua New Guinea Supreme Court, the Australian concentration camp for asylum seekers on Manus Island has been declared illegal, unconstitutional and a breach of asylum seekers’ human rights.

The Australia and PNG governments have been ordered to close the camp “forthwith”.

The PNG Supreme Court decision is in marked contrast to the decision by the Australian High Court, delivered in February, which found that offshore detention of asylum seekers was constitutional.

The difference in interpretations lies in the fundamental differences between the constitutions of the two countries.

The Constitution of the Independent State of Papua New Guinea, to give it its full title, was enacted by the PNG parliament in 1975 and enshrines the rules for the operation of capitalism in PNG. Significantly, it contains a lengthy Division Three (“Basic Rights”) which has provided the basis for the Supreme Court’s decision.

Australia’s Constitution was enacted by an imperial parliament and enshrines the rules for the operation of capitalism in Australia. It assumes the correctness of the seizure of Australia from Aboriginal and Torres Strait Islander peoples by British colonialism and reflects a compromise between the British as colonial masters, the elites and ruling classes of the separate colonies, and the representatives within the ruling class of those who favoured a central power for the newly emerging nation.

Significantly, it made no provision for defining the basic rights of the Australian people. Australia entered nationhood without a Bill of Rights and is still without one.

This means that there is no formal document in Australia upon which a decision like PNG’s Supreme Court decision can be made.

At the beginning of 2015, the Attorney-General of Australia had referred to the Australian Law Reform Commission (ALRC) responsibility for a public Inquiry into the relationship between Commonwealth law and the exercise by Australian citizens of their traditional rights, freedoms and privileges.

In establishing the enquiry, the ALRC noted: “The Australian Constitution does not expressly or impliedly protect most of the rights, freedoms and privileges listed in the ALRC’s Terms of Reference”.

In its submission to the enquiry, the CPA (M-L) noted:

5. The rights, freedoms and privileges of the Australian people are not guaranteed under the principle of legality.  The “sovereignty of Parliament” which our law-makers so jealously guard against a Bill of Rights, allows the Parliament to make laws which encroach on our rights, freedoms and privileges so long as those laws encroach clearly and unambiguously.

6. The same applies to international law.  International treaties, conventions and other instruments provide no guarantees for the rights, freedoms and privileges of the Australian people.  So long as the sovereign Parliament makes its encroachments clearly and unambiguously it may thumb its nose at our international obligations.

We Australians live in a fool’s paradise if we think that our rights and liberties have any legal protection.  The Australian Building Construction Commission, the so-called “trigger” for the July 2 election, is living proof of that. The Australian working class has more than one reason for standing alongside asylum seekers. The future of the working class lies in the defence of the rights of all.

International opinion, from the United Nations to the New York Times, has labelled Manus Island “Australia’s ‘Guantanamo’”.

We say that the 850 men imprisoned by private company Broadspectrum (formerly Transfield) on behalf of the Australian government must be released immediately and flown to Australia to have their refugee status processed expeditiously.  As it is, around half have already been granted refugee status, yet they remain within the concentration camp as prisoners.

All asylum seekers and refugees are in one way or another, victims of capitalism and imperialism.

Responsibility for the inhuman response to their plight is shared equally between Labor and Liberal.

The people and not the politicians have morality on their side.

End the indefinite detention of asylum seekers!