The PNG court’s ruling on the Manus Island detention centre won’t bring Australia’s disgraceful offshore detention programme to an end, but it is a solid blow and offers hope of further change, writes ABC columnist Michael Bradley.

The Supreme Court of Papua New Guinea has done to Manus Island what the High Court of Australia should have done to Nauru – shut it down.

In part, this is because the constitution of PNG does what ours doesn’t – it provides some basic protections for human rights.

The Australian Government constructed a set of legal fictions on Manus Island, as it did in Nauru.

Their purpose was to allow Australia to pretend that it was complying with its international legal obligations with respect to asylum seekers who have come to Australia seeking the protections of the Refugee Convention, while in reality both washing its hands of these people and using them as a human deterrent to others.

The PNG court has called “bullshit” on this farce.

It was able to do so quite easily, because the PNG government was incompetent in the execution of its side of the deal with Australia.

It rushed through an amendment to the PNG constitution to provide legal backing for the Manus Island agreement, the fatal flaws in which were not hard to identify.

The facts are well known. As the Court found, the asylum seekers sent to Manus Island were taken there under Australian Federal Police escort and held at the detention centre, behind razor wire, against their will.

The PNG constitution says that “no person shall be deprived of his personal liberty” except in certain specified cases, such as convicted criminals.

The list of exceptions did not cover the detention on Manus Island, so the PNG government amended the constitution to add an extra one.

In doing so, it failed to comply with the constitutional requirement that it properly explain why the restrictions on personal freedoms which it entails are “reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind.”

The PNG immigration minister had issued visas to the asylum seekers who were sent to Manus Island, so that they could be legally brought in to the country. That’s where the whole charade fell down.

As the court noted, the asylum seekers are not in PNG voluntarily – they did not enter, and don’t remain there, by choice. They are, however, in PNG quite lawfully.

Since they are lawfully in PNG, the court found that their personal liberty cannot be interfered with unless there is a legal basis for doing so. That basis doesn’t exist.

As Justice Kandakasi said: “Treating those required to remain in the relocation centre as prisoners irrespective of their circumstances or their status save only as asylum seekers, is to offend against their rights and freedoms as guaranteed by the various conventions on human rights at international law and under the PNG constitution.”

Note the clarity of language: they are being held as “prisoners”, a word that the Australian government and courts have studiously avoided. But that’s what they are.

What are the implications of this?

Well, for all Peter Dutton’s claims that this ruling doesn’t change anything, the PNG court has declared the continuing detention of asylum seekers on Manus Island to be illegal, and ordered the Australian and PNG governments to immediately take all steps necessary to bring it to an end. That’s a fact, not an implication. It’s true that the PNG supreme court has no power to order the Australian Government to do anything, particularly given that Australia wasn’t a party to the court case.

However, that isn’t important, as the PNG government is bound by the decision and there is no appeal. It is obliged to implement the court’s orders without delay. It must close Manus Island Processing Centre and free all of its inmates.

But what then? Perhaps the PNG government will try to rush through another constitutional amendment to plug the hole, but I don’t think that’s going to happen.

Prime minister Peter O’Neill has been very publicly voicing his regret that PNG ever did the deal in the first place, and the political tide in PNG seems to be running in favour of getting out of this mess altogether.

In any event, Manus Island has to be closed immediately. Of the 850 or so asylum seekers currently held there, I understand that fewer than 10 have actually been released into the PNG community.

Of them, three found life so bad on the outside that they were arrested trying to get back in to a guarded transit centre.

The practical reality is that these people cannot be safely released, on Manus Island or elsewhere in PNG. Their personal safety would be in jeopardy.

Meanwhile, Dutton keeps repeating that he doesn’t care what the PNG court says, they’re not coming here, with all the gravitas of a small child throwing a tantrum.

Labor’s spokesman Richard Marles’ equally meaningless contributions serve only to remind us that it was his party that set Manus Island up in the first place and its moral standing on this issue is precisely as low as the Coalition’s.

Put aside the posturing from those who have led us into this national shame. The actual hard reality is that 850 human beings, who sought Australia’s legal protection and remain our legal and moral responsibility no matter what we tell ourselves or anybody else, are now in a physically dire circumstance.

The detention centre where they are imprisoned has been ordered closed and must be closed. They must, by law, be freed. They will then be less safe than they have ever been. Whatever happens to them next is on us.

PNG will want to offload all 850 back onto Australia. It will not let them loose in PNG, but it cannot keep them locked up.

It will be saying to Australia “take them back”, while our government and opposition are still saying that they’ll never be settled here.

There are only three ways out – a third country agrees to take them (not going to happen); they’re sent to Nauru; or they come back here and go into limbo on Christmas Island or in mainland detention.

What we can be very confident about is this. The collective strategic wisdom of the Australian government and its agents in the Department of Immigration and Border Protection is now intensely focused on how to adapt to this reminder from a superior court of law that it is acting in flagrant disregard of its human rights obligations, concentrating not on whether it might now stop torturing these poor people, but rather on how it might continue to employ them as the human sacrifices they have become - just somewhere else.

The PNG court’s judgment won’t bring Australia’s disgraceful and inhuman offshore detention programme to an end, but it is a solid blow and makes today a good day in the development of the law’s willingness to protect basic human rights. It gives me hope, anyway.

- Michael Bradley is the managing partner of Sydney law firm Marque Lawyers, and he writes a weekly column for the ABC.

Bainimarama slams chiefly institution

FIJI – Fiji’s Prime Minister Frank Bainimarama said the Great Council of Chiefs was an undemocratic entity in Fiji that fostered racial discrimination.

Frank Bainimarama was making a statement in parliament on the reasons his government opposed the reinstating of the council of chiefs as put forward in a petition to parliament by the opposition on Monday.

The prime minister was away in England attending ceremonies associated with the Queen’s birthday celebrations and was not in parliament when it was voted out by government MP.

On his return to Fiji he made a lengthy statement in which he said the tradition of the chiefs was very much part of the culture of Fiji but restoring the institution of the Great Council of Chiefs was not in the best interests of the people.

He also used his speech to criticise the opposition for prioritising the council of chiefs issue at a time when Fiji needs unity in the aftermath of Cyclone Winston.

“ I want to explain to the nation why the government opposed this on Monday. And I do so not only as prime minister but as the Minister for iTaukei Affairs and as a proud iTaukei myself.

“ Everything I do as Prime Minister is motivated by what is best for every Fijian, including the iTaukei. And I believe passionately that restoring the institution of the Great Council of Chiefs is not in the best interests of the iTaukei. And let me tell you why.

“First of all, I have to say that with all the suffering and hardship in Fiji at the moment, this was an astonishing petition and motion to put forward at the first parliamentary sitting since Tropical Cyclone Winston.

“Our people are still coming to terms with the loss of 44 of their loved ones, up to 40,000 of their homes either damaged or destroyed, along with 229 schools and other public buildings and infrastructure.

“Is restoring the Great Council of Chiefs in the least bit important at the present time? And yet this is what the Opposition came here with on Monday – the very first motion at the very first sitting of the Parliament since Winston – not to talk about our collective response to the present crisis or the rebuilding programme that lies ahead but to drag us all back into the past – but to try to breathe life into an institution that is long gone and an issue that is irrelevant when so many of our people are in such a desperate state.

“The Great Council of Chiefs was disestablished more than four years ago in March 2012. Why waste our time in this, 49 months later? Trying to revive an issue that has nothing whatsoever to do with the current needs of the Fijian people?

“To have made this your first priority in the Parliament since Cyclone Winston is an insult to our people, given their present challenges.

“It is now more than nine weeks since Cyclone Winston devastated the country. Nine weeks in which the Opposition has had time to think about how it might contribute positively to the relief effort aside from its cash donation – and get behind the nation as we confront the great challenge we all face to rebuild Fiji.

Bainimarama said trying to reinstate the Great Council of Chiefs (GCC) was “all so pointless”.

“So unnecessary. Just think of what we have achieved as a nation in the four years since the GCC was abolished. We have a new Constitution that establishes this Parliament as the supreme decision-making body in the country.

“And we have had the first truly democratic election in which almost 60 per cent of the electorate voted for change.

They voted for the Fiji First government to take our nation forward. Voted emphatically to stop raking over the old arguments of the past and chart a new course to give every Fijian a better future.

“When are the honourable members opposite going to finally wake up? When are you going to come to terms with the fact that you went to the nation with your politics of division and were rejected?

“When are you going to become an effective opposition worthy of the name and do your job properly? When are you going to stop being obsessed with the past and turn your minds to helping Fijians create a better future?

Referring to the debate before the petition was voted out Bainimarama said: “On Monday we had a conga line of opposition MPs giving us a succession of history lessons. It’s a sign of how much they’ve lost the plot that most of those lessons were factually wrong. So permit me to give the members opposite a basic lesson in history that is grounded in fact.

“The astonishing claim was made on that the GCC was an indigenous organisation stretching back to before colonial times. Wrong, Madam Speaker. It was established by the British in 1876 – initally as the Native Council – two years after our islands were handed over to Queen Victoria by Ratu Seru Cakobau and the other chiefs who signed the Deed of Cession.

“So the GCC, the institution, is not indigenous at all. It was a British institution set up by our colonisers. And it was set up so the British could govern and control the indigenous population through the chiefs at that time.

“The British used the GCC to serve their own purposes. They had hereditary chiefs of their own – their dukes, earls, barons and so on. So they were very comfortable dealing with hereditary chiefs in Fiji. Not with troublesome commoners but people like them who owned their power to an accident of birth. People who could order everyone else to fall into line.

“This arrangement worked well for the British until they left Fiji 94 years later in 1970. But let’s not kid ourselves. The whole system was about control. The British, with the support of the chiefs, deciding what was best for ordinary Fijians whether they liked it or not.

“Ordinary iTaukei didn’t get to vote directly for their own representatives until the general elections in the mid-sixties.

“So that was the mind-set at the time – that the commoner iTaukei people had to be led by those born to rule because they were too backward to decide anything for themselves.

“Times have changed but the mentality of the opposition has not. They accept that ordinary iTaukei now have the right to vote but still think they are happier when they are told what to do and what to think by their chiefs.

“The fact is that in the end, the GCC had become so politicised, so divisive, that it was a significant obstacle to improving the lives of ordinary Fijians. It was certainly a major obstacle to the most important issue if all – our pursuit of a common and equal citizenry to finally build one nation and move forward together.

“In 2007, the GCC was suspended and five years later, in 2012, it was removed from the regulations that established it in the first place. And I make no apology for it. Because it benefited the country and also benefited our chiefly system in Fiji.

“Our chiefs retain their titles and position in the vanua. The more enlightened chiefs accept that we are now in meritocracy in which every citizen enjoys equal opportunity. And they don’t want the GCC reconstituted because they recognise that removing them from politics has strengthened their position in the vanua.

“Four years after the door closed once and for all on the GCC, only the opposition wants to open it again. To wind back the clock. To restore the power and privileges of the elite. Because Sodelpa is the party of the elite. It puts the privileges of some Fijians before the rights of all.

“I appeal to Sodelpa and the three NFP members who make up the opposition to play a positive role in and outside of parliament and become more relevant.

“Put aside those attitudes that are more rooted in the 19th century and join the rest of us in the 21st. Fix your eyes on the future and not the past.

“We discontinue the institutionalised and politicised Great Council of Chiefs to strengthen the chiefly system in Fiji. And that system is stronger and more relevant today than it has ever been because our chiefs are now above politics. Our chiefs can no longer be compromised.

“The removal of the GCC has and will lead to a more effective governance of the iTaukei people and to a more effective marriage between democracy and culture.

“Just because we no longer have the GCC does not mean our chiefs do not exist. Our chiefs are here. They are much more likely to be secure in the hearts and minds of the iTaukei, and indeed other Fijians, if they are forces of unity rather than division.” - PNC