As Opposition Leader Beldan Namah prepares himself for his day in court on the 12th February to challenging the establishment of the Manus Dentention Centre, I thought I’d share this below by Gavera Gavera Jr who actually posted this on the blog some days back. Presently from sources it is understood that there are 235 detainees including 34 children being detained on Manus.

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By GAVERA GAVERA JNR.

The Manus detention centre in Papua New Guinea set up to facilitate Australia’s internal political solution aimed at stemming the flow of refugees, asylum seekers or boatpeople into Australia, under a Bi-lateral Agreement with the PNG government, is an illegal set up, for an illegal purpose. Australia and Papua New Guinea have and continue to breach international law and the PNG Constitution.

Only several months ago Julia Gillard telephoned PNG Prime Minister O’Neill and asked him to facilitate the processing of boat people and refugees in PNG’s Manus Island, presumably, as a return favour to her for granting ONeill premature political recognition while an ill Prime Minister Somare was still on legitimate official sick leave, convalescing in a Singapore hospital. It was as if the events of 2nd August 2011 were done in tandem with Australia.

For Gillard this telephone call also signified a shift in policy on many levels, for processing of boat people and Refugees from Malaysia to Manus (in PNG ) and Nauru. Gillard had gone to the elections in a hard fought win promising to scrap the “Pacific Solution” initiative previously championed by the Liberal-National Coalition Parties. In her desperation, Gillard used the Opposition’s own solution to shut them up, and in the meantime hoping and praying that the electorate would either forget her promises, or forgive her for her lies.

Australia’s breaches of International Law.

The Manus processing centre is a closed jail like centre where there is heavily armed security, and is out of bounds to the public and the media. It is a strictly controlled environment where the Refugees are not allowed to mingle with locals. They cannot leave the site. No locals are allowed in. It is a prison-like environment wherein detainees are not allowed access to normal creature comforts of normal life. There is a very strong fence that cannot be assailed and armed guards are posted everywhere. Australian Federal Police and Military personnel maintain an overriding presence on the Manus facility.

No one, including lawyers, are allowed access to any Refugee under the Bi-lateral arrangements between Australia and PNG. No media is allowed in, and the use of mobile phones and access to them is greatly restricted. The use of cameras and the internet are also restricted. The detainees are not allowed to speak of their conditions to the outside world. Contact with outside world is greatly restricted to those detained at the risk of them forfeiting their right to early processing. By bi-lateral Agreement those detained are purportedly made subject to Australian law only-not PNG law.

The initial economic reasons why the Manus Island was first offered by the Manus Provincial government and the leaders of Manus have been largely ignored by Peter ONeill and Julia Gillard. The promise of extraordinary favour by Australia on Manus in the form of extraordinary economic largesse was the perfect bait for cargo-cult prone Manusians.

The reality is most of the contractors and suppliers of food and consumables are captive companies out of Australia, so there is very little tangible economic benefit back to PNG or the Manusians for this exercise.

The recent announcements of public utilities aid by Australia to Manus are but a reconfiguration of existing bi-lateral aid arrangements, and nothing new. In any case, the people of Manus have never been compensated by Australia and the Allies for the use and destruction of their Islands and environs during WWII. The services rendered by the Manus people subsequently in maintaining Lombrum as a forward Australian Navy facility have also been forgotten by Australia.

The processing centre is run no different to the one the Somare government of PNG phased out as being unconstitutional and in breach of international law.

The UN Convention & Protocols Relating to the Status of Refugees 1951 was a document that was drawn up immediately after WWII to protect millions of Refugees that were left homeless and driven across national borders. Dr Evatt, an eminent Australian Rhodes scholar, was instrumental, as Australia’s representative, in drafting this Convention.

Both Australia and PNG are signatories to the UN Convention & Protocols Relating to the Status of Refugees (Refugee Convention)1951 & 1967 Protocol (“Refugee Convention”) which clearly outlines that a signatory government like Australia cannot expel or transport refugees back to their country of origin or to a third location like Manus or Nauru, unless there is a guarantee that these countries will not persecute them, they would not be oppressed, and that their human rights will be protected (Articles 32 &33).

Until PNG can give a guarantee that the human rights of the refugees will be guaranteed and protected, and until Australia can satisfy itself that the rights of the refugees will indeed be protected and that they would not be oppressed in any way, Australia is obliged by the Refugee Convention ( Articles 32 & 33) not to expel or transport them at all, but to process them on Australian soil.

Irrespective of whether a person’s status as a refugee has been determined (under the Convention) or not, the processing of boat people who enter Australia or apprehended by Australian authorities, must principally be done in Australia and on Australian soil, under the Convention, and can only be transported out under fairly limited circumstances. The legal onus is on Australia to satisfy itself objectively beyond any doubt the guarantee of the rights of the refugees as human beings where they are transported to.

Past experience shows clearly that Manus is an oppressive environment for the Refugees. Recent reports of an information black out by Australia , including the banning of cameras and prohibition of lawyers and media access into the detention centre, proves that nothing has changed. This are rules being made by Australian authorities on PNG soil.

Manus processing centre is actually a jail for innocent people whose only crime has been to search for a better life for themselves, and in some cases, escape from death and persecution for their political or religious beliefs. Article 31 of the Refugee Convention states that no refugee can be penalized for illegal entry of a country’s territory if they are fleeing from persecution.

Australia has clearly breached international law (Articles 32 & 33 of the Refugee Convention) in the first place in intentionally facilitating and writing up the bi-lateral Agreement that PNG signed which at the core of it deprives refugees, boatpeople and asylum seekers, their human rights. Australia knew that these people would not be granted their human rights. Australia knowingly designed the Manus detention centre with rules that keep both Lawyers and the media away. PNG has become complicit in these breaches.

Australia also wrote the rules ( by drafting the bi-lateral Agreement) that deem the detention centre as part of Australia where Australian law applies, to deliberately circumvent the jurisdiction of the PNG Courts.

All these are capricious and oppressive arrangements created by Australia to deliberately entrap the detainees in a legal and political vacuum or a legal no man’s land so that it can do whatsoever it pleases to these human lives, away from the scrutiny of any media, and away from the scrutiny of the Australian courts and the Australian legal system. Most important of all, politically, Julia Gillard could tell the Liberal-National Coalition whatever she wants on the floor of the Australian Parliament and they would be none the wiser about it, just as long as the processing is taking place out of their sight. The Opposition has been effectively gagged in Australia as it could not argue against its own policy prescription.

The Refugee Convention is also very clear and specific about Refugees access to lawyers and the Courts. Article 16 of the Refugee Convention reads:

“ACCESS TO COURTS
1. A refugee shall have free access to the courts of law on the territory of all Contracting States.
2. A refugee shall enjoy in the Contracting State…the same treatment as a national in matters pertaining to access to the courts, including legal assistance…
3. A refugee shall be accorded in matters referred to in paragraph 2…the treatment granted to a national of the country of his habitual residence”

In the case of the Manus Refugee Processing Centre, the Refugees are not granted access to lawyers or the courts of PNG.

It is all very well for Julia Gillard to claim Australian Law applies in Manus to the processing of these people, but what good is that when under the bi-lateral arrangements PNG Immigration Department (stacked with Ausaid Advisors) cannot grant visas to Australian lawyers or Australian Media teams who want to travel to Manus and speak to the Refugees and highlight their present suffering.

In any case, even if they were to be granted visas to travel, what good is that when an independent Australian armed Security Company (a captive service provider of the Federal Government) running the facility prohibits any outside access to the inmates?

Lawyers from both Australia and PNG cannot access any inmate to meet and observe their condition or interview them. Without contact with refugees granting instructions to lawyers, with Australia’s current information blackout in place, the Centre has been designed to prevent any scrutiny by both Australian and PNG Courts of what is actually going on in Manus concerning the lives of these refugees.

The Manus processing centre has been deliberately set up to frustrate the rule of law and the clear dictates of the Refugee Convention which was designed to protect vulnerable people like these boatpeople who are at the mercy of a country that sees them as nothing but troublemakers, illegal immigrants, que jumpers etc.

All these rules and oppressive arrangements have been well thought through and planned by Canberra, written into the bi-lateral Agreement that Gillard obtained ONeill to sign.

Australia is not only acting in breach of international law and in particular Article 33 of the Refugee Convention in exporting refugees to a detention centre that deprives refugees of their rights, but Australia is the worst offender in deliberately designing these people’s misery. Hitler designed gas chambers for the Jewish Refugees in WWII. Today we see Australia has designed detention Centres in the Pacific and on Australian soil to the oppression and deprivation of refugees.

Photo: Angela Wylie. Image Source http://www.smh.com.au

Photo: Angela Wylie. Image Source http://www.smh.com.au

Australia’s History of Oppression.

For a long time the Australian government has been looking to curb or discourage boat people flooding its shores by deliberately employing cruel and inhuman treatment of asylum seekers, boat people or refugees. Australia’s record in refugee treatment is not pretty. In some cases children and babies have been held in captivity and jail like conditions in Australia for years without any ounce of recognition or consideration for their humanity. Families have been rendered asunder, and in some cases lives have been destroyed. Many people held in captivity in jail like conditions in Australia have been left with permanent psychological scarring. Others have gone on hunger strike, committed suicide, or even sown up their lips to demonstrate that they are a people without a voice discarded as garbage by the Australian Federal Government and its leadership.

Over Christmas in 2011, we watched in horror as the remains of a boat carrying over 300 men women and children, smashed mercilessly against the rocks on Christmas Island, were gathered up piece by piece and limb by limb by the Australian Navy.

The Australian Navy, Coast Guard and its surveillance system picked up the boat many hours before they struck tragedy. They knew the heavily laden boat was headed for the rocks in bad weather. Yet, they stood by and allowed these people to sail directly to their death. It is not beyond contemplation that the Prime Minister and the Defence Minister of Australia at that time may have been made aware of the impending tragedy, and may have chosen to turn a blind eye. A full public Inquiry would have revealed the truth of Australian complicity and inaction. But the captive Australian media and the Prime Minister lamented it as a sad tragedy and left it at that.

This is not the first time Australia has deliberately allowed boat people to drown. This policy of watching and waiting and turning a blind eye to people in peril at sea does not sit well with the Australian Navy, who has made it known to the politicians that they have sworn an oath as seamen and women to save lives of other seafarers. The manner in which the politicians in Canberra appear to expect the Navy to break a time honoured code of ethics of seafarers does not sit well with the higher ranks of the Australian Navy. Some servicemen and women have suffered psychologically as a result, having watched and stood by while innocent men women and children whose only crime was to come to Australia, daring to dream of happiness and to seek a better life and a better future, being haplessly plunged to their certain deaths.

The Refugee Convention is very clear that it is not a crime for human beings, people of one country to leave their country and go seek a better life in another country if they suffer persecution in the original country on grounds of race, religion or political belief. As a matter of fact it is a fundamental human right to live in peace in a safe and secure environment, and the Convention provides for and gives effect to this right and the sacred sanctity of human life and the inherent dignity of every person.

Australia has over the years done everything under the sun to persecute, desecrate and demonize asylum seekers, refugees and boat people. Yet when it comes down to it, Australia is a country of boat people. White Australia is a country of boat people and their descendants. What gives Julia Gillard and her Cabinet any more right to Australia than those latterly arrivals on Aborigine soil?

It is only a matter of timing, but that is all. White Australia has no more legal, ethical or moral high ground to claim Terra Australis than these latterly arrivals, especially when it’s very government apparatus is set up and maintained on the back of a felony, a fraud on the Aborigine people.

This behoves Australia to adopt a position, a moral and legal position that is concomitant with a full understanding and appreciation of the full surrounding circumstances causing plight of people around the globe; and in this sense Australia’s own hegemonic part in the invasion of other countries and causing demographic, political, religious and economic instability in certain parts.

Refugees: Victims of Australian Immigration Policy Failure.

Australian Leaders equally fail to see the full benefits of a healthy Immigration Policy that treats people with dignity. Their immigration policy is ridden by every political jockey as if to ensure the next load of boat people do not get in at all was a virtue worthy of the highest political goal score and inverse personal political credibility, be it government or opposition. The fact that Australia does not have an open quota system, prescribed open criteria, and aggressive selective migration policy, allows enterprising individuals in Sri Lanka and Indonesia to capitalize on it, to set up ferrying businesses, transporting people who would otherwise be decent and skilled human beings in any society. Australia’s own policy failure is just as culpable for lives lost at sea and the abuses of human rights, as those who it seeks to persecute and blame for their enterprising economic gain in transportation.

The front page right hand column of The Australian a few weeks ago (prior to the Manus Agreement with PNG) said the Australian Government internal studies reveal that it will need 800,000 new skilled workers in 5 years’ time! It expressed grave concerns for the Australian economy that it cannot be in a position to meet this demand. How poetically paradoxical it was that right across the top of the same page in bold print was the headline “Labor floats Nauru solution”.

Now, even if every able bodied Australian female, and every hot blooded beer swirling meat pie eating fly swatting footy crazy Aussie male, started fornicating non-stop for the next 6 months, they still will not produce the 800,000 skilled workers needed in 5 years’ time to meet the demand forecasted.

That is one reason why, Australian Migration Policy as closed discriminatory and insular as it is, driven by a psyche of isolation and out-dated phobias, need to be stood on its head and overhauled to meet the challenges of the next century, or Australia will surely suffer being left behind as a land of red necks and human rights bigots in an Asian-Pacific region that has progressed beyond the issues of race colour and creed.

PNG ‘s Manus Solution is Illegal.

Clearly the Manus solution in Papua New Guinea is illegal and unconstitutional under PNG law. Among other reasons, it is illegal because:

1. It deprives the liberty of people to be held in Jail like lock ups. Under the PNG Constitution (Section 37) , a person cannot be deprived of his liberty unless he is convicted of a crime, or the Police charged him with a crime, and the courts in the meantime refuse bail. Where a person is suspected of a committing an offence, he can be held for a short time for Police interview. Aside from that, there is no other basis in law in PNG to hold a person captive. Any asylum seeker so held can sue the PNG Government for damages for false imprisonment and for breach of his rights under Section 37 of the Constitution. The Manus Refugee processing centre is therefore an establishment set up for an unlawful purpose. The Bi-lateral Agreements signed by Australia and PNG to effect an unlawful purpose are void from the beginning. The holding of refugees on Manus at this moment is unlawful.

2. PNG is a signatory to the Refugee Convention, it is obliged to protect and process refugees speedily, and where necessary allow the Refugees access to Lawyers and the courts to have their claims heard and settled speedily (Article 16 of the Refugee Convention). The manner in which the Manus Centre is set up with High Security perimeter is very clearly designed to deny the basic human rights of the Refugees guaranteed by the Refugee Convention.

3. The denial of human rights entailing the Manus processing Centre, locking up of men, women and children who have not broken any law in PNG, is harsh, oppressive and inhuman. (The specific human rights breached are set out here below)

Even if Peter ONeill and Julia Gillard can argue what they have done is well within PNG laws, it is still unlawful as it by its effects is a breach of Section 41 of the Constitution of Papua New Guinea. This is so especially when these people do not know when they will be processed and they are held in abeyance for months and years at a time, sometimes separated from their families. It is also oppressive when they have no access to lawyers or courts, especially Australian courts applying Australian Law in respect of their Applications to remain in Australia. An aggrieved refugee in Manus is automatically denied access to Australian lawyers and Australian Courts to have his case reviewed. Denial of proper Jurisdiction and facilities is denial of natural justice, a form of oppression that is Unconstitutional under PNG law.

4. In PNG entering into the Bi-Lateral Agreement on Manus, knowing that the arrangements were oppressive, PNG breached Article 32 &33 of the Refugee Convention. In accepting the Regugees in Manus, it effectively compounded the breach by affecting individual rights of the detainees.

Australian Human Rights Quagmire

Papua New Guinea must keep its nose clean and keep from being dragged in to Australia’s inhuman, discriminatory, oppressive and illegal activities- a human rights quagmire. The O’Neill government must not stoop to continue such illegal and unlawful conduct. The people of PNG and their dignity must not be allowed to be tarnished by Australia’s own policy failures and inability to treat other people humanely. The people of Papua New Guinea are normally hospitable to strangers in need. We have nothing against these refugees. We are not an oppressive people by nature. MIPELA OL SORI LAIN. As a Christian country we are obliged to show them hospitality. Peter ONeill must not treat these strangers in our midst in a way that is against our true Melanesian nature and character as a nation and as a people.

Australia is very backward in human rights laws and protection of lives of asylum seekers. They do not have a codified bill of rights as we do in PNG in our Constitution. The Australian government wants to make Manus and Nauru as oppressive as possible to deter further asylum seekers, even if it is against the law. This is the very crux of oppression and illegality that Peter ONeill has signed PNG up for which is legally and morally wrong. It goes against our grain and our nature as Pacific people of Melanesia.

Breach of Human Rights Under the PNG Constitution.

Human Rights Breached by the Manus Detention Centre under Papua New Guinea Constitution include:

a) Freedom from inhumane treatment.
b) Right to protection of the law.
c) Right not to be held in custody unless charged with an offence known at law.
d) Right to be heard quickly, and by a fair and impartial tribunal.
e) Right to respect for the inherent dignity of a person.
f) Freedom from harsh, oppressive and unwarranted treatment.
g) Freedom of movement.

These are human rights under the Constitution that cannot be unilaterally contracted away by the PNG Government in a Bi-Lateral Agreement. Any Bi-lateral Agreement must in the first place conform with our Constitution. Any Bi-lateral Agreement that does not conform is an illegal arrangement.

Abuse of Office of Prime Minister.

Peter ONeill may feel obliged to keep doing favours for Julia Gillard for the political recognition granted to his regime in August 2011, but this is not a matter for personal political favors. The Independent State of Papua New Guinea and indeed the office of Prime Minister is not Peter ONeill’s personal business enterprise. The Office is set up under the Constitution as a public office and it must be run in accordance with the laws of this country. Infact it was not a private decision for pliable Peter alone to make personally by directing the Foreign Minister Pato to facilitate Peter and Julia’s wishes and most ardent desires, as he did.

This is a matter of law, and NEC and Parliament should have been the appropriate body to look at and debate the full ramifications of this decision.

The issue of a sovereign country like PNG deciding to cede part of its sovereignty over a territory like Manus detention centre to Australian Jurisdiction is a very serious matter. Ceding one’s sovereignty and ones judicial jurisdiction, and building a prison to imprison persons who have not broken any law in PNG, are very serious matters clearly for the Parliament to debate.

What Peter ONeill has done so far is clearly illegal, and is a gross abuse of public office, amounting to misconduct in office.

Any aggrieved party can, and must, as a matter of public interest, challenge this by way of a Supreme Court Reference for the Courts to give their opinion on the Constitutional and international law ramifications ( as outlined) of the Manus Detention Centre. Australian Leaders must be called upon to respect human lives and treat their inherent person with dignity, not like some pile of garbage to be transported all over the Pacific ocean and discarded in some remote disused military facility.

Our Constitution recognizes the whole person in any human being. It recognizes the sacred sanctity of human lives in their physical as well as their spiritual environs and the wellbeing of the integral person. That is why international law providing for Universal Declaration of Human Rights and Conventions such as the Refugee Convention have been imported by the Constitution to be part of the domestic laws of Papua New Guinea, enforceable by our courts.

Photo by AAP. Image Source http://www.sbs.com.au

Photo by AAP. Image Source http://www.sbs.com.au

Conclusion.

By our Constitution and by international law, the Manus Detention Centre and the Bi-lateral Agreement enabling it are illegal.

If Australia wants to be a model democracy and a great nation one day, Australian leaders must first show the world that they have joined the rest of humanity, and have become a people of dignity and decency in their Refugee and Immigration policies, respecting and living within the rule of law, and not try to get around it. That would be a good starting point for a nation of early boatpeople.

As for Peter ONeill, he must close down the Detention Centre or risk leaving the State vulnerable to legal suit by the Refugees for damages running to the tens of Millions of Kina.

It is a fact that both the Foreign Affairs Minister and the Attorney General of PNG were not involved in vetting the Manus arrangements. The State Solicitor never gave legal clearance for PNG to enter into this bi-lateral Agreement with Australia. The decision was a private and personal decision of Peter ONeill.

As a matter of fact, Peter ONeill has glibly signed many Agreements placed before him by Australia since August 2011, without line Department scrutiny and proper legal clearances from the State Solicitor. There is a danger that these Agreements equally rushed for ONeill’s signature in the last 12 months by Australia may also be outside our laws. It is only proper that these agreements must now be properly reviewed by the Attorney General and the Minister for Foreign Affairs in the national interest of Papua New Guinea.

Papua New Guinea must seize Australia’s policy failure on Immigration as an opportunity to give something back to Australia and its people by showing them the correct, proper, humane and legal way to treat fellow human beings. PNG this is your opportunity to shine as a people with a big heart, doing unto others what we would have them do unto us.

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