In Australia the Labour Party led by their PM Gillard are now making a 180 degree bout turn on their Refugee Policy. They appear to have abandoned the Malaysian solution and have now embraced the Pacific Solution, which they went to the elections opposing Liberal-National Coalition Parties on. How fickle and untrustworthy Politicians can be anywhere, let alone Australia!
What this signifies is a shift for processing of boat people and Refugees in PNG ( Manus ) and Nauru.
In the past the NA led Somare government has opposed the processing of Refugees in PNG. There were very good legal and human rights reasons for this policy. This refusal was based on proper legal advice. That it is unconstitutional and unlawful to have an asylum processing centre in PNG, like the one in Manus.
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. There is a very strong fence that cannot be assailed and armed guards are posted everywhere. No one, including lawyers, are allowed access to any Refugee under the Bi-lateral arrangements between Australia and PNG. Most of the contractors and suppliers of food and consumables are companies out of Australia, so there is very little tangible economic benefit back to PNG for this exercise.
The UN Convention & Protocols Relating to the Status of Refugees Refugees (Refugee Convention)1951 & 1967 Protocol (“Refugee Convention”) clearly outlines that a signatory government like Australia cannot transport refugees 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. Until PNG can give a guarantee that the human rights of the refugees will be guaranteed and protected, Australia is obliged by the Refugee Convention not to transport them at all, but to process them on Australian soil. Irrespective of whether a person’s status as a Refugee has been determined or not, the processing of boat people who entered Australia or apprehended by Australian authorities, must principally be done in Australia and on Australian soil, under the Convention. This is an implied international obligation of Australia under the Refugee Convention. The decision to transport them out of Australian legal jurisdiction can only be done if the Australian government can guarantee the physical safety, security, human rights, and speedy processing of their Applications to enter and remain in Australia as Refugees. Past experience shows clearly that Manus is an oppressive environment for the Refugees.
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. In some cases children and babies have been held in captivity and jail like conditions for years and 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.
Last Christmas, 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. 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. The Prime Minister of Australia 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. 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 is not sitting 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 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 Aborigines soil? It is only a matter of timing. That is all. White Australia has no more legal, ethical or moral high ground to claim Terra Australis than these boat 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 their own part in the invasion of other countries and causing demographic political religious and economic instability in certain parts.
Australian Leaders equally fail to see the full benefits of a healthy Immigration Policy that treats people with dignity. The 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 credibility, be it government or opposition. The fact that they don’t have an open quota system, prescribed open criteria, and aggressive selective migration policy, allows for some people to capitalize on it to set up money making operations to do boat runs with people who would otherwise be decent and skilled human beings in any society. The front page right hand column of The Australian last weekend says 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 was this page as it had right across the top in bold 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, start 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 sat on its head and overhauled to meet the challenges of the next century, or it will surely suffer being left behind as a land of red necks.
Clearly the Manus solution in Papua New Guinea is illegal and unconstitutional under international law as well as 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 we cannot deprive the liberty of persons unless they are convicted of a crime, or the Police charge them with a crime, and the courts cannot grant them bail. Where a person is suspected of a committing an offence, he can be held for a short time for interview. There is no other basis in law in PNG for us 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. Yet, the Manus Refugee processing centre is exactly that. It is an establishment set up for an unlawful purpose.
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. 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. This happened the last time and there no guarantee that it will be any different. 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, which 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. PNG Courts cannot apply Australian Law. 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 a form of oppression that is Unconstitutional under PNG law.
3. Australia will have breached its obligations under the Refugee Convention by transporting these Refugees to Manus. Australia has an obligation to receive refugees, grant asylum and resettle them. Australia has an obligation to facilitate safe travels of Refugees to safe destinations. Australia also has an obligation at law to process the Refugees speedily on Australian soil. The very fact that the Manus centre is like a maximum security jail, and the fact that the people do not have access to welfare services, lawyers, Journalists, access to Australian Lawyers and Courts, with their human rights unlikely to be protected, should oblige Australia not to send these people in the first place to Manus.
Australia proudly sends its soldiers to other countries to fight and bring democracy to these countries, now it must stand up and show what a model democracy it is. Julia Gillard and her Cabinet must not make excuses for their generation of Australians and co-opt compliant leaders like Peter O’Neill to condone and carry on breach of International law and PNG law. Papua New Guinea must not become party to Australia’s inhuman, discriminatory, oppressive and illegal activities. The O’Neill government must not stoop to illegal and unlawful conduct.
4. 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 in PNG do in our Constitution. However, even when we do have a Bill of Rights, our past experience of Manus has been that if we cannot meet or speak to Refugees or asylum seekers and know about their grievances, we cannot help them under our law. That is why Australia has designed Manus to ensure minimum outside access and maximum security. They have in the past even prevented Australian lawyers and journalists access to the refugees both in Manus and in Nauru. 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.
The Asylum seekers rights under our Constitution likely to be breached without any remedy 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.
Peter ONeill may feel obliged to keep doing favours for Julia Gillard for the political recognition granted to his illegitimate regime last August, but this is not a matter of politics and 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 is not a decision for pliable Peter O’Neill to make personally by directing the Foreign Minister Pato to facilitate Peter and Julia’s wishes and most ardent desires. etc. This is a matter of law, and NEC should be the appropriate body to look at and debate the full ramifications of this decision. Thereafter, Parliament should sit and consider this whole issue, thereby allowing clarity and common sense and the wishes of the nation to be carried in a public and informed atmosphere. What Peter ONeill has done so far is clearly illegal, and is a gross abuse of public office.
Any aggrieved party can 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 ramifications of this decision. We will now sit back and see the true colours of some of these national Leaders as to whether they will fall for this trick or not. The Opposition should knock this on the head, and call on Australian Leaders to respect human lives and treat their inherent person with dignity, not like some piece of garbage to be transported all over the Pacific ocean and discarded in some disused former military facility. If they want 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. That would be a good starting point.