refugees Manus
Refugee and journalist Behrouz Boochani (Image: Amnesty International)

The re-elected Morrison government should not assume it can ignore the plight of the 550 men who are still detained on Manus Island. Not only because there is a fair chance Canberra will not have a compliant Papua New Guinean Prime Minister in the form of the beleaguered Peter O’Neill for much longer, but because of two court actions.

More than 250 detainees have filed documents with the PNG National Court asking for enforcement of their human rights. They complain that despite a 2016 PNG court ruling that found the detention of asylum seekers since 2013 was illegal and ordered the closure of the Manus detention centre, they are still held captive on the island, forced to live in three compounds constructed by the Australian government.

Verbal and physical abuse, poor healthcare, and a 6pm to 6am curfew are the order of the day for the men on Manus. There have been assaults on detainees by locals and the quality of food is appalling. Detainees cannot leave the island without obtaining permission to do so. They are, despite the closure of the detention centre at the end of 2016, prisoners with no release date in sight.

The PNG government has refused to speak to New Zealand Prime Minister Jacinda Ardern who has offered to take some of the men detained at Manus. Since the Morrison government was reelected 10 days ago the sense of despair among Manus detainees has increased markedly with a number of instances of self-harm.

Unlike Australia, the PNG Constitution lists a number of human rights which can be enforced through the courts. These include a right to freedom, freedom from inhuman treatment, liberty of the person and the right to freedom of movement.

The PNG legal system has created a process to “facilitate a quick and just resolution of proceedings” for the enforcement of these rights in the National Court. This means that quick action can be taken by the court to protect the rights of the 250 detainees who have so far filed complaints with the court. The court is likely to order that the men be allowed to leave Manus, and that the current system of detention, funded by the Australian government, must end.

The court might also order the PNG government to provide travel documents to detainees so they can have a chance at resettlement in a third country. These hearings are likely to take place within the next few weeks.

In addition, there is also a big damages claim relating to the PNG Supreme Court’s April 2016 decision that remains to be assessed. In essence every person detained from August 27, 2013 until May 12, 2016 when the detention centre gates were opened — a period of 989 days — is entitled to damages for every one of those days.

In Australia we would call it a false imprisonment claim. Yesterday lawyers for Behrouz Boochani, the celebrated author and journalist currently on Manus, filed an application for the independent assessment of the amount of those damages.

Boochani’s case, if successful, will allow for every other detainee to make a claim. The claim on Boochani’s behalf is not only claiming daily damages but also what are termed exemplary damages against the PNG government. Exemplary damages are awarded in cases where the court takes a view that the conduct of the party has been egregious and to deter that party and others from similar misconduct in the future.

While the daily rate of damages paid to individuals who are unlawfully detained in PNG has been around $130 a day, Boochani’s lawyers argue that figure should be higher because in this case the men detained had not been charged with any criminal offence and done nothing to warrant punishment by detention.

It is likely the PNG government will have to pay out at least $130 million, if all detainees made a claim. The Australian taxpayer is likely to end up footing the bill because, under a deal between the Abbott government and PNG signed in July 2014, Australia has agreed to pay “all costs incurred under and incidental to the [2013 Rudd government agreement with PNG], including any reasonable costs associated with legal claims … excluding costs resulting from actions by employees or agents of the PNG Government that are malicious, fraudulent or reckless”.

Remember that Australian taxpayers have already been hit up for around $70 million, plus more for lawyers’ costs after Slater and Gordon settled a Victorian Supreme Court action in 2017 for Manus detainees.

Greg Barns is a barrister and has assisted the PNG legal team acting for Manus Island detainees.

Peter Fray

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