High Court asked to declare Manus detention illegal as 859 detainees seek their day in court

Amy Maguire, University of Newcastle

A writ of summons was registered in Australia’s High Court on Wednesday on behalf of 859 detainees at the Manus Island detention centre. This is a class action initiated against Australia, Papua New Guinea, the two countries’ immigration ministers, PNG’s attorney-general and the companies that administer the centre.

The detainees want the High Court to use its original jurisdiction in judicial review of their transfer to and detention on Manus Island. They seek an injunction to prevent their removal to Nauru or elsewhere until the court hears the matter.

Recent background

This action follows the PNG Supreme Court finding that the detention on Manus Island is unconstitutional. The PNG Constitution contains a Charter of Rights that strictly limits the circumstances under which people may be deprived of liberty.

As Australia forcibly transferred the detainees, they were not responsible for their own unlawful entry to PNG. Therefore, no constitutional exception could permit their legal detention.

Following the Supreme Court decision, PNG Prime Minister Peter O’Neill announced the Manus Island centre would close. He asked Australia to “make alternative arrangements for the asylum seekers”.

O’Neill’s Australian counterpart, Malcolm Turnbull, said Australia would not accept the detainees. Australia’s immigration minister, Peter Dutton, described them as PNG’s responsibility.

Basis for the claim

The detainees argue their detention is illegal on international, constitutional, administrative and civil law grounds. They are asking the High Court to declare that their detention constitutes:

What are the detainees seeking?

The detainees request relief via the ancient writ of habeas corpus. They want to be brought before the High Court so its judges can determine whether their detention is legal.

The detainees hope the court will then issue a writ of mandamus. This would order the government to bring them to Australia to process their refugee claims.

Finally, the detainees seek a writ of prohibition, to prevent their transfer to any other place until the case has been decided and their claims assessed.

The detainees are seeking damages and costs. They may also take action in PNG for compensation. A PNG legal representative of many detainees estimates that up to A$1 billion could be owed.

This action echoes earlier high-profile claims, like the Tampa case. In such cases, human rights lawyers seek to vindicate the rights of asylum seekers who lack access to Australian courts due to their forcible offshore detention.

Other advocates have sought the aid of international courts. They argue Australia’s actions against asylum seekers who seek to arrive here by boat inflict crimes against humanity.

The High Court will hear the application on May 23.

Australia’s human rights problem

Around half of those detained on Manus Island have already been assessed to be genuine refugees. Yet most remain in detention, in part because their safety is at risk if they leave the centre.

The refugees would not face the same level of risk were they to be resettled in Australia. Yet PNG law has offered more substantial rights protection to them than Australian law.

The stark contrast between Australian and PNG law is in the relative degree of formal protection for human rights. Whereas PNG has a Charter of Rights enshrined in its Constitution, Australia lacks constitutional protection. Its government has rejected legislative protection for human rights.

Though Australia professes deep commitment to human rights standards in its foreign relations, it refrains from entrenching these international norms domestically. This position reflects a cultural attitude that the Australian “fair go” is sufficient protection against the excessive use of government power.

The experiences of Indigenous peoples in Australia before the law put the lie to this belief. And if adequate human rights protections are not the universal experience of people in Australia, what hope for asylum seekers who lack access to Australian courts and are demonised in public discourse?

Hope for success

The most recent High Court action challenging Australia’s offshore detention arrangements in Nauru failed. The court found the government was acting in accordance with its constitutional and legislative powers.

However, the majority of judges did regard Australia as bearing at least some responsibility for the detention of asylum seekers in Nauru. This may undermine the government’s argument that detainees on Manus Island are PNG’s sole responsibility.

This new action’s distinguishing feature is a request that the High Court use its universal jurisdiction for the first time. The detainees argue that Australia has no legal power to forcibly deport and arbitrarily and indefinitely detain asylum seekers in torturous, inhuman or degrading conditions without legal rights.

If the claim succeeds, it will entirely undermine Australia’s inhumane practices in relation to “those who come across the seas”.

Amy Maguire thanks Jay Williams, barrister-at-law of Frederick Jordan Chambers, for providing the original writ of summons used to initiate this action in the High Court.

The Conversation

Amy Maguire, Senior Lecturer in International Law, University of Newcastle

This article was originally published on The Conversation. Read the original article.

Hundreds of Asylum-Seekers Are on Hunger Strike Over Australia’s Resettlement Plan


Nearly 700 detainees, or almost two-thirds of those held in an Australian offshore detention center on Papua New Guinea’s (PNG) Manus Island, are on hunger strike to protest Canberra’s plan to permanently resettle them on the island.

The hunger strike comes in the wake of a vow by Australia’s recently-appointed Immigration Minister, Peter Dutton, that Manus Island detainees would “never arrive in Australia,” reports the Sydney Morning Herald.

During the past week, hundreds of detainees have abstained from food, and some from water, over the government’s plan to move them to the nearby town of Lorengau. As many as 14 have sown their lips together, the Herald says.

Visiting Australian medical staff and refugee rights groups say that health facilities on Manus Island center are not equipped to handle the hunger strike.

“They don’t have the capacity to handle a hunger strike of even one tenth of that size,”…

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Australian Politics: 27 July 2013

The Gonski reforms for education in Australia continue to cause problems for the ALP, with several states and territories refusing to sign up. The links below are to articles covering stories on some of the states that refuse to sign up.

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Australia: Detention Centres Are a Disgrace

The link below is to an article reporting on the recent 4 Corners program and the Australian detention centres on Manus Island and Nauru. I have seen the program and it has confirmed my view that our asylum detention centres are a disgrace and should be shut down. We as a country need to reconnect with the principles of compassion and humanitarianism. 

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