It’s Deprivation of Liberty Whatever the Court May Say

The asylum seeker issue is never far from the headlines. And that has proven to be the case so early in the new year. Parliament has not even returned, and the full complement of political players have not resumed regular hostilities, yet refugee policy has again been raised in the media. On Friday we had Malcolm Fraser chastising both the government and the opposition over their treatment and demonisation of asylum seekers in an interview. And today we learned that the political opposition in Papua New Guinea launched a legal challenge on Friday to the immigration detention facility recently re-opened by the Australian Government on Manus Island.

There have been multiple challenges to elements of asylum seeker policy and practice over the last few years in Australia. But this is the first challenge launched overseas. The appeal was launched by Opposition Leader Belden Namah in the National Court and seeks to have the Australian immigration facility overturned on the grounds that it is unconstitutional.

In bringing this case, Mr Namah wants the imprisonment of asylum seekers on the island to permanently cease. While the case is being heard the leader of the opposition has also sought a temporary cessation of the transfer of asylum seekers to the Manus Island detention centre.

The PNG Opposition Leader has spoken out about the immigration facility before. He has made the point that asylum seekers have not broken any laws and as such, should not be imprisoned in the Manus Island complex.  And so it follows that Mr Namah has brought this challenge because he believes the processing centre deprives asylum seekers of their personal liberties.

On this point, regardless of the legal outcome in the context of the legal system in Papua New Guinea, he is absolutely correct. Being detained and imprisoned for something that is not a criminal offence does deprive asylum seekers of their liberty. Such an act of unwarranted cruelty is in no way justifiable, especially when used as a political weapon by government.

Whether or not the challenge in a legal sense is successful is a completely different story and frankly irrelevant. Asylum seekers have been sent to Manus Island before, under the former Howard Government. This was not subject to a legal challenge from anyone in PNG  so there is nothing to compare the present situation to.

And opinions on the merits of the case appear divided, though it must be noted that the probability of success appears more than even, with the Constitution of Papua New Guinea having a list of rights enshrined within it.

The government of Papua New Guinea has however said that the centre is being run within the laws of the country and that of international treaties. The former might be correct in terms of the asylum seeker issue and it may not be, but the latter most certainly is not.

But we know of course that the debate over the detention of asylum seekers involves more than just the deprivation of liberty and the breach of international law.

Detaining asylum seekers can both exacerbate pre-existing mental illnesses and create new ones. Why would we want to be known to endorse a practice which results in diminishing the welfare of already vulnerable people?

Unfortunately there is an answer to that question and it is a disgraceful one: fear. For some reason there is an underlying fear of difference for which some trace the genesis back to the White Australia Policy. With the right checks and balances undertaken in a sensible manner by authorities, we have nothing to fear from people trying to seek asylum in Australia.

There simply is no valid reason for Australia to continue to embark upon such a barbaric course of action in trying to tackle a policy concern which, despite that barbarity, is still and will continue to be an issue.

A date has not yet been set for the hearing of this case. But we do not need a court case to tell us what we already know, and that is that people being held in immigration detention are being deprived of their liberty, whatever the courts may say.

About Tom Bridge

A perennial student of politics, providing commentary for money and for free. Email me at tbridgey@gmail.com or contact me on 0435 035 095 for engagements.

Posted on January 21, 2013, in Federal Politics, International Politics and tagged , , , , , , , , , , . Bookmark the permalink. Leave a comment.

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