Not for Export: The Failure of Australia’s Extraterritorial Processing Regime in Papua New Guinea and the Decision of the PNG Supreme Court in Namah (2016)

31 Pages Posted: 30 Aug 2017

See all articles by Azadeh Dastyari

Azadeh Dastyari

Monash University - Faculty of Law

Maria O'Sullivan

Monash University - Faculty of Law

Date Written: 2016

Abstract

The so-called ‘Pacific Solution’ operated by successive Australian governments to deal with refugee boat arrivals has been the subject of domestic and international criticism. It is, however, now an arrangement which certain other countries are looking to as a possible model to emulate. The viability of a key component of Australia’s extraterritorial processing and detention regime has been called into question by the 2016 decision of the PNG Supreme Court in Namah v Pato. The Court, in a unanimous decision of five judges, held that detention of refugees and asylum seekers in the Australian-funded centres in that country was unconstitutional under the right to liberty set out in the PNG Constitution. This paper will analyse the decision of the Supreme Court in Namah and demonstrate the failure of the Australian extraterritorial regime in PNG. Furthermore, it will argue that the PNG experiment should not be viewed as an isolated event that is unique to the choice of PNG as an extraterritorial processing site. Rather, the number of legal challenges, the criticism of the extraterritorial processing regime from numerous national and international bodies, and the political tensions caused in PNG and Australia are illustrative of the unsustainability of extraterritorial models more generally as a means of addressing refugee flows. Australia’s approach is no solution to the growing displacement of people globally and should not be seen as an attractive option by any state tackling large numbers of people seeking its protection. The only real viable option for Australia now is to transfer refugees from Manus Island back to Australia and to offer the men a durable solution in its own territory.

Keywords: refugees; asylum; human rights; PNG; Manus; extraterritorial; border protection

Suggested Citation

Dastyari, Azadeh and O'Sullivan, Maria, Not for Export: The Failure of Australia’s Extraterritorial Processing Regime in Papua New Guinea and the Decision of the PNG Supreme Court in Namah (2016) (2016). Monash University Law Review, Vol 42, No 2, 2016, p. 308-228 . Available at SSRN: https://ssrn.com/abstract=3028025

Azadeh Dastyari (Contact Author)

Monash University - Faculty of Law ( email )

Wellington Road
Clayton, Victoria 3800
Australia

Maria O'Sullivan

Monash University - Faculty of Law ( email )

Wellington Road
Clayton, Victoria 3800
Australia

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