Domestic Laws in PNG and Treatment in Detention
Introduction
Papua New Guinea (PNG) has a flimsy human rights record. As a developing country, the legislation and statutes it has in place to protect asylum seekers and refugees are severely lacking.
PNG is a signatory to the 1951 Convention and its 1967 Protocol. However, there were significant reservations affecting refugees’ rights (including areas of employment, housing, education, freedom of movement, expulsion and access to naturalisation).
Articles 17(1), 21, 22 (1), 26, 31, 32 and 34.
On 20 August 2013, the Government of the Independent State of Papua New Guinea notified the Secretary-General in accordance with article 42(2) of the Convention, of its decision to partially withdraw its reservation made upon accession:[1]
“… In accordance with article 42, paragraph 2 of the Convention, I wish to communicate to you that Papua New Guinea withdraws its reservation with respect to the provisions contained in articles 17 (1), 21, 22 (1), 26, 31, 32 and 34 of the Convention in relations to refugees transferred by the Government of Australia to Papua New Guinea and accepts the obligations stipulated in these articles in relation to such persons. This withdrawal has immediate effect. The reservation remains in effect for all other persons…”
This creates the whole other issue of discrimination, with rights under the Convention applying to refugees who are transferred by the Australian Government, but not applying to refugees who arrive in PNG.
Papua New Guinea already its own refugee problem, with thousands of internally placed villagers fleeing tribal violence and living in social and economic deprivation on the fringes of cities. There have been concerns raised that it will create further social divisions in the unstable society. [2]
Conditions of Detention:
PNG’s 1978 Migration Act (as amended in 1989) permits the Minister to “determine a non-citizen to be a refugee”,[3] but there is no specific refugee legislation or administrative provisions relating to the determination of refugee status. The current legislation does not provide details on how this determination is to be made, or the rights and obligations of refugees once they are granted refugee status (e.g., the type of documentation to be provided to them, residency status, access to labour market).[4] Persons seeking refugee status in PNG do not have access to assistance during the determination process and after recognition of refugee status.
This author notes that the Migration Act does allow the Minister to direct refugees or classes of refugees to reside in a relocation centre. Of concern are the two subsections to this S15C of the Act, with respect to physically moving asylum seekers to detention centres.
(2) A direction under Subsection (1) is sufficient authority for a police officer to detain and take into custody the refugee or class of refugees or non-citizen claiming to be a refugee specified in the order for the purpose of taking that refugee or class of refugees or non-citizen claiming to be a refugee to a relocation centre and keeping that refugee or class of refugees or non-citizen claiming to be a refugee in that relocation centre.
(3) A police officer acting under a direction under Subsection (1) may use such force as is reasonably necessary for the purpose of taking a person to a relocation centre.
Another concerning section of the Migration Act is located in s19. It removes the right for the asylum seeker to review or challenge a decision of the RSD panel. The right to appeal is a fundamental element of due process and cannot be discarded lightly in any country that proclaims democracy.
19. NO APPEAL AGAINST DECISION OF MINISTER, ETC.
(1) Without limiting the generality of Subsection (2), the expression “review or challenge” in that subsection includes–
(a) a writ of certiorari, prohibition or mandamus or other form of prerogative writ, or other writ, order or process in the nature of such a writ; or (b) proceedings by way of appeal or for a writ, order or process referred to in Paragraph (a) (including proceedings for an order nisi or to show cause why relief should not be granted).
(2) An act, proposed act or decision of the Minister relating to the grant or cancellation of an entry permit or to the removal of a person from the country, or any decision of a Committee of Review under Section 6, is not open to review or challenge in any court on any ground.
The UNHCR has raised serious concerns about the current legal framework for receiving and processing asylum seekers. “According to the spokesperson, these include a lack of national capacity and expertise in processing, and poor physical conditions with open-ended, mandatory and arbitrary detention settings.”[5]
There is a current lack of national legal framework under which refugee claims are to be assessed, and the UNHCR has raised concerns surrounding the capacity and expertise of officials to process asylum claims. “In particular, UNHCR recommends that the Government of PNG develop a legal framework for assessing the international protection needs of all asylum seekers arriving in PNG, by whatever means”.[6] This challenges the stated primary purpose of the PNG Solution, which is to identify whether an asylum seeker is a refugee in need of international protection.
Extracts from the United States Department of State Country Report on Papua New Guinea.[7]
Despite minor improvements to existing cells and increased capacity, prison conditions remained poor, and the prison system continued to suffer from serious underfunding. Neither prisons nor police detention centers had proper medical care facilities. Overcrowding in prisons and police cells remained a serious problem in some facilities.
Physical Conditions: At year's end there were 4,134 inmates, with overcrowding existing in some of the prisons. According to the correctional services commissioner, all but five of the country's prisons experienced overcrowding during the year. The holding capacity of the country's prisons was 4,366 beds. Of the total number of inmates, almost one-third were pretrial detainees. There were 259 female inmates. Within the inmate population, there were 2,840 convicted prisoners, 1,140 pretrial detainees, and 154 male juveniles, consisting of 90 convicted prisoners and 64 pretrial detainees. Australian assistance continued toward upgrading these facilities. Despite minor maintenance work underway, two prisons, in Tari, Southern Highlands, and Daru, Western Province, remained closed during the year due to tribal conflicts and unresolved health issues, respectively.
In some areas infrequent court sessions, slow police investigations, and bail restrictions for certain crimes continued to exacerbate overcrowding. Authorities usually held male and female inmates separately, but some rural prisons lacked separate facilities, and there were reports in the past of assaults on female prisoners. Authorities held pretrial detainees in the same prisons as convicted prisoners but had separate cells.
During the year, 13 of the country's 19 prison facilities had separate accommodations for juvenile offenders; the remaining six did not. The Catholic Church operated three juvenile reception centers to hold minors awaiting arraignment prior to posting of bail. Human Rights Watch (HRW) reported that authorities routinely held juveniles with adults in police detention cells, where they were often assaulted by older detainees. Police denied juvenile court officers access to police cells.
Death in prisons or pretrial centers was not prevalent during the year, and prisoners had reasonable access to portable water. A number of prisons experienced problems with lack of adequate ventilation and lighting.
Specific problems:
Discrimination and xenophobia:
PNG is a predominantly Christian country, with strong Christian values.
The UNHCR office in PNG has noted that non-Melanesian asylum seekers and refugees are particularly vulnerable to the domestic security situation and xenophobia, a significant challenge not faced by West Papuan refugees. The UNCHR has noted first hand experience that “the sustainable integration of non-Melanesian refugees in the socioeconomic and cultural life of PNG will raise formidable challenges and protection questions.”[8]
The five largest nationality groups seeking asylum in Australia in 2012 are as ranked:[9]
Afghanistan
Sri Lanka
Iran
Pakistan
China
Many of the asylum seekers travelling to Australia for protection are Muslims, fleeing religious persecution. Hela Province governor, Anderson Agriru recently introduced a motion to PNG’s parliament to carry out a nationwide consultation on the nation’s religious status, which was passed unanimously.[10]
LGBTQI asylum seekers
LGBTQI asylum seekers who arrive in Australia by boat will be resettled in PNG, in spite of the criminalisation of homosexuality in PNG, found under S210 of the Criminal Code 1974.
210. UNNATURAL OFFENCES
(1) A person who-
(a) sexually penetrates any person against the order of nature; or
(b) sexually penetrates an animal; or
(c) permits a male person to sexually penetrate him or her against the order of nature,
is guilty of a crime.
Penalty: Imprisonment for a term not exceeding 14 years.
[1] Depository notification: C.N. 558.2013.TREATIES-V.2. (Partial withdrawal of reservation by Papua New Guinea)
[2] James Bourne, PNG’s own internal refugees to miss out under Rudd plan (23 July 2013) ABC Radio National <http://www.abc.net.au/radionational/programs/breakfast/repected-png-figure-hopes-asylum-deal-is-a-political-bluff/4836888>
[3] Migration Act1978 (Papua New Guinea), s15A
[4] UNHCR, Papua New Guinea Fact Sheet, UNHCR <http://unhcr.org.au/pdfs/UpdatedPNGfactsheet.pdf>
[5] UNHCR, Australia-Papua New Guinea asylum accord raises serious protection issues – UN Agency (26 July 2013) UN News Centre, <http://www.un.org/apps/news/story.asp?NewsID=45506&Cr=australia&Cr1=#.UjWn_WQY1sg>
[6] UNHCR Regional Representation Canberra, UNHCR Monitoring Visit to Manus Island, Papua New Guinea, 11-13 June 2013 (12 July 2013) UNHCR < http://unhcr.org.au/unhcr/files/2013-07-12_Manus_Island_Report_Final%281%29.pdf>
[7] United States Department of State, 2012 Country Reports on Human Rights Practices – Papua New Guinea (19 April 2013) UNHCR <http://www.refworld.org/docid/517e6df152.html>
[8] UNHCR Regional Office Canberra, UNHCR: Australia-Papua New Guinea asylum agreement presents protection challenges (26 July 2013) UNHCR <http://unhcr.org.au/unhcr/index.php?option=com_content&view=article&id=344&catid=35&Itemid=63>
[9] UNHCR Statistical Online Population Database, United Nations High Commissioner for Refugees (UNHCR), Date extracted: 10/09/2013. www.unhcr.org/statistics/populationdatabase
[10] Issac Nicholas, ‘Move to ban non-Christian faiths’, Post Courier (online) 15 July 2013 <http://www.postcourier.com.pg/20130715/news02.htm>
