Castan Centre for Human Rights Law

The implications of the Papua New Guinea Supreme Court decision 

By Maria O’Sullivan

The highest court in Papua New Guinea has, in a unanimous decision, found that detention of refugees and asylum seekers in its Australian-funded ‘processing’ centres is unconstitutional. Although the Supreme Court decision is not directly enforceable under Australian law, it will have significant legal and political implications for the continuing operation of Australia’s offshore processing centres.

The Constitutional Provisions

The constitutional provision central to the case is Section 42 of the PNG Constitution. This provides that ‘No person shall be deprived of his personal liberty’, except in defined, limited circumstances. Section 42(g) provides that one of the exceptions to the right to liberty is where this is ‘for the purpose of preventing the unlawful entry of a person into Papua New Guinea, or for the purpose of effecting the expulsion, extradition or other lawful removal of…

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