Analysis
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The PNG Supreme Court has given Malcolm Turnbull cover to do the right thing and, not a moment too soon, end the inhumanity of indefinite detention of vulnerable and damaged people on Manus Island.
His administration was not part of these proceedings but, with the PNG government, it has been found guilty of a flagrant violation of the most fundamental right enshrined in the PNG constitution – the right to liberty.
Both governments have been ordered to "take all steps necessary to cease and prevent the continued unconstitutional and illegal detention of the asylum seekers" and the ongoing breach of their human rights.
Both will now be scrambling to find some way to circumvent the decision and continue a policy that seeks to deter boat arrivals by subjecting those who have already come to ongoing punishment, harm and misery.
One way around the decision is for the PNG parliament to pass another constitutional amendment or other legislation to make the detention lawful. This is problematic on two fronts: whether Prime Minister Peter O'Neill has the appetite to push it; and whether it would pass.
Another would be to declare the detention centre an "open facility", as happened in Nauru, but this would be a much greater challenge on Manus, where resentments remain strong from the 2014 riots that saw Reza Barati killed and scores of asylum seekers injured.
It would also be more challenging because the detention centre is so far from the island's only town and because more than 300 of the asylum seekers have not had their claims processed.
"They won't be coming to Australia", is the predictable, knee-jerk response from Immigration Minister Peter Dutton, but they should be brought here, even if some are ultimately resettled elsewhere.
Rather than try to prop up a punitive, immoral and now illegal policy, the focus should be on developing a humane alternative based on regional cooperation with countries including Indonesia, Malaysia and Thailand.
Such a policy could see an agreement for returning boat arrivals to transit countries for processing, provided their human rights were respected, and the refugees on Manus and Nauru resettled in Australia, New Zealand and other developed countries like the US and Canada.
Releasing about 900 men into the Manus community is impossible on logistical and practical grounds, including the hostility of locals to any such proposition. The same goes for relocating them to PNG's major cities, Port Moresby and Lae.
Transporting them to Nauru is not a viable option for similar reasons: the tiny island and its already strained infrastructure could not cope.
The unsustainability of the whole exercise is demonstrated by the statistics. Despite the promise that those found to be refugees would be resettled in the first half of 2014, only eight refugees out of more than 1000 are no longer institutionalised.
Three found life in Lae so threatening and unbearable that they returned to Manus Island and attempted to find refuge in the transit centre set up at massive cost to facilitate their release.
As Fairfax Media reported over the weekend, one spent the night in the Lorengau police lock-up after attempting to scale the transit centre fence when he was refused entry. If it was not so tragic, it might be funny.
This leads to a third possible response from the PNG government: to tell Australia it is no longer bound by the agreement and to find another way to solve its problem - to declare enough is enough.
Dutton says detainees will not be brought to Australia
Immigration Minister Peter Dutton says about 900 men being held at the Manus Island detention centre will not be brought to Australia after Papua New Guinea's Supreme Court ruled their detention was illegal.
The decision strikes one of the central pillars of the Turnbull government's border protection regime, just weeks out from an election campaign during which the government is expected to heavily spruik its asylum seeker record.
In a statement on Tuesday afternoon, Mr Dutton said the legal proceedings did not alter Australia's border protection policies, which "remain unchanged".
The court ruled the detention breached the constitutional right of asylum seekers to personal liberty. It ordered the Australian and PNG governments to immediately cease the "unconstitutional and illegal detention of asylum seekers" at Manus Island, and stop the breach of their human rights.
But the scale of this task is reflected in the fact that only eight of more than 1000 asylum seekers who were held in the centre have moved into the PNG community.
Three of these refugees returned to Manus Island and attempted to re-enter the island's transit centre and two were arrested, as reported exclusively by Fairfax Media.
The vast majority of men in the detention centre have been found to be refugees. The court ruling said they were seeking asylum in Australia but were "forcefully brought into PNG" and locked in an Australian-funded centre "enclosed with razor wire".
Mr Dutton said on Tuesday that no-one who attempts to travel to Australia "illegally" by boat will settle in Australia.
"The government will not allow a return to the chaos of the years of the Rudd-Gillard Labor governments when regional processing was initiated to deal with the overwhelming illegal arrivals of more than 50,000 people," he said, adding the agreement with PNG to establish the detention centre was negotiated by Labor.
Mr Dutton said refugees at Manus Island could resettle in PNG and those whose claims were rejected should return to their country of origin.
PNG's immigration minister, Rimbink Pato, told Fairfax Media he would issue a statement on the ruling after it was "considered properly" and legal advice was obtained.
Labor's immigration spokesman Richard Marles said the ruling was "of significant concern" and said Mr Dutton should immediately be dispatched to Port Moresby to hold urgent talks with the PNG government.
"Labor is seeking an assurance from the government that it has a contingency plan to deal with today's ruling. This decision, and our government's response will be monitored by people smuggling networks," Mr Marles said.
He said the original agreement Labor struck did not intend for Manus Island to be "a punitive place of indefinite detention" and claimed the government had failed to properly manage its offshore processing network after three years in office.
"Mr Dutton and his predecessor, Scott Morrison failed to properly engage with the government of PNG to ensure processing was occurring in a timely manner," he said.
"They have also both failed in securing a lasting, third country resettlement to resolve the future for the people on Manus and Nauru. In doing so, this government has breached its duty of care to each one of those men, women and children."
PNG immigration authorities attempted to prepare for an adverse decision by signalling their intention to move refugees out of detention and into the transit centre in Lorengau.
But the preparations have been resisted by asylum seekers, including those who refused to have their claims for refugee status assessed on the grounds that they had been taken to PNG against their will by the Australian government.
This week the PNG immigration department asserted 542 refugees had been offered resettlement in PNG, including just 74 who had moved from the detention centre to the transit centre.
Australian Human Rights Commission president Gillian Triggs said the unanimous ruling by five judges was "further confirmation that Australia's detention policies are increasingly out of step with international norms".
Professor Triggs said the future of men on Manus Island remained "profoundly uncertain", citing UNHCR concerns that the sustainable integration of refugees into the PNG community "will raise formidable challenges and protection concerns".
Greens immigration spokeswoman Sarah Hanson-Young said the reported court ruling showed Australia "has been illegally detaining refugees on Manus Island for years".
"The [Turnbull] government has got to shut the Manus Island detention camp and bring these people here... so that they can have their claims assessed and be integrated into the community," she said.
"These people have been through enough. It's time they were given the safety and care that they deserve."
Australian Lawyers Alliance spokesman Greg Barns said the decision was consistent with international law which stated that indefinite detention was unlawful.
The ruling also meant asylum seekers could likely make successful claims for damages for false imprisonment, and strengthened claims that Australia had breached its duty of care to asylum seekers.
"If Australia ignores the decision then it is contradicting its oft-stated claim that Manus Island detention is a matter for PNG jurisdiction," he said.