Wednesday 27 April 2016

Malcolm Turnbull on Manus Island - Play Misty for Me?

Construction workers walk around the secure perimeter fence of the Refugee Processing Centre at Lombrum, Manus Island, Papua New Guinea. 2014. © Vlad Sokhin / Panos Pictures

This morning Malcolm Turnbull urged Australian taxpayers, and soon-to-be voters, not to be "misty-eyed" about the plight of those imprisoned in the Australian-funded and operated 'Immigration Processing Centre' on Manus Island.  

No, Mr Turnbull, I am not "misty-eyed" about the Manus detention centre. But I am clear-eyed about the law. 

False imprisonment is a tort attracting awards of substantial damages. It is apparent from the judgement of the PNG Supreme Court, as it must have been to successive Australian Governments, that those detained have been falsely imprisoned, and that the damages to which they are entitled are mounting by the day. 

Perhaps more importantly, they have been deprived of their liberty, and deprivation of liberty, as in Australia, is a serious crime.  Under section 355 of the PNG Criminal Code. It is punishable by up to three years imprisonment.  Before Minister Dutton and his officials fly off to Port Moresby they might also ponder section 13:


(1) A person who–
(a) while outside Papua New Guinea procures another person to do or omit to do an act in Papua New Guinea of such a nature that, if he had himself done the act or made the omission, in Papua New Guinea, he would have been guilty of an offence; and
(b) afterwards comes into Papua New Guinea,
is by coming into Papua New Guinea guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the act or made the omission in Papua New Guinea.
(2) A person who–
(a) while outside Papua New Guinea counsels or procures the commission of an offence that is actually committed in Papua New Guinea; and
(b) afterwards comes into Papua New Guinea,
is guilty of an offence of the same kind, and is liable to the same punishment, as if he had been in Papua New Guinea when the offence was committed.

No, Mr Turnbull it is not an Immigration Processing Centre.  It is plainly, as you as a lawyer must have known, and as the Supreme Court of Papua New Guinea has held, an illegal prison, funded, controlled and operated by the Commonwealth.

Australia's Gulag - The Manus Island Prison

Prior to my posts on the Manus Island detention centre last year I had lodged the complaint below (partially edited and with emphasis added)  with the National Court of Papua New Guinea.  It was not the proceeding that reached the Supreme Court, but it may have had some effect.
FORM 127                   O23 r 9(1)




1. Name of 

2. Address:


3. Phone numbers:         


4. Statement:
  1. The complaint is made on behalf of asylum seekers currently detained on Manus Island who are, I believe, detained in breach of section 42 of the Constitution of Papua New Guinea.
  1. I am a barrister practising in Perth, Western Australia, ....
  1. I was admitted to practise in the then Supreme Court of New Zealand in ..., the then Supreme Court of Fiji in ..., the Supreme Court of Western Australia in ..., and the High Court of Australia in ....
  1. In all of those jurisdictions I have practised in the area of human rights.
  1. I appeared as counsel on behalf of an unaccompanied minor detained in Nauru. Reported judgments appear as:  Plaintiff P1/2003 v Ruddock  [2007] FCA 65;   (2007) 157 FCR 518;  Sadiqi v Commonwealth of Australia (No 2) [2009] FCA 117 (2009) 181 FCR 1; (2009) 260 ALR 294; cited in Plaintiff M70/2011 v Minister of Immigration and Citizenship [2011] HCA 33;  (2011) 85 ALJR 891; (2011) 122 ALD 237.
  1. I appeared as counsel in a claim for damages brought on behalf of a falsely imprisoned Sri Lankan resident of Australia reported as:  Commonwealth of Australia v Fernando [2012] FCAFC 18;  (2012) 200 FCR 1;(2012) 287 ALR 267; (2012) 126 ALD 10.
  1. An appeal to the High Court of Australia in which I appeared on behalf of an unaccompanied refugee minor  is reported as: WACB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 50; (2004) 210 ALR 190; (2004) 79 ALJR 94 (7 October 2004).
  1. I have been approached by an Australian resident on behalf of those detained there, and asked to provide assistance to those detained in immigration detention on Manus Island.
  1. From media reports of the difficulty of lawyers in obtaining access it appears unlikely that I would be permitted to enter the detention centre to provide advice to those detained there should I attempt to do so.
  1. I have advised one of the detainees, with whom I am in contact by electronic mail, of the right of the Manus Island detainees to complain to the National Court that they are detained in breach of section 42 of the Constitution of Papua New Guinea by means of a complaint under the Human Rights Rules 2010, and have provided him with a copy of the Form 125, and advice on how it should be filled out.
  1. However, I am not confident that the detainees will be able to avail themselves of those rights.
  1. I believe that those in the detention centre have been and are detained in breach of section 42.
  1. While not fully apprised of the facts, I further believe that the participation of the Commonwealth of Australia by its servants and agents in the running of the detention centre may be unlawful as in breach of Australia’s Constitution.
  1. l believe that I have standing under Rule 6(b) and/or (c) of the Human Rights Rules 2010.
  1. I am willing to appear at any hearing into the complaint.


I, JOHN LEWIS CAMERON, declare this statement to be correct to the best of my knowledge and belief AND I hereby bring this information to the attention of the National Court.

Dated at Perth, Western Australia, this 24th day of June 2014.

The change of description from Immigration Processing Centre to prison is deliberate.  As a consequence of the judgment of the Supreme Court, it can no longer be described other than as an unlawfully operated prison.