The Controversy of the Asylum Seekers Deal

By Gande James*

THERE are a lot of controversies that surround the recent asylum seekers deal signed between Papua New Guinea Prime Minister – Peter O’Neill and his Australian counterpart - Kevin Rudd.

The PNG government says that the arrangement in itself is beneficial and those who side with it are those who hold similar views. There are, nevertheless, strong sentiments amongst the people, institutions, international organizations, Non-Governmental Organisation, and even other neighboring countries such as Fiji about the signing of the deal. There are many arguments for and against but only few of perceived advantages and disadvantages of the asylum seekers deal will be highlighted and looked at in this commentary. We will start by looking at some of the negativities associated with it.

First, there are no proper institutional mechanisms put in place to regulate the effects of the arrangement. For example, there are no separate laws like the Asylum Seeker Act to deal with any issues of asylum seekers. In the absence of a legal framework, the implementation of the deal will be ad hoc as policies, procedures and processes would not have been put in place as yet.

Bens Saul, a Professor of International Law at the University of Sydney, following the signing of the deal, stated that those who will be recognized as refugees and settled in PNG are highly unlikely to enjoy all of the human rights owed to them under the refugee convention. Violence, including sexual violence is endemic in PNG, so refugees will not be physically safe.

Second, basic rights to health care, education, work, social security and an adequate standard of living are also highly unlikely to be sufficiently provided, given the chronic poverty in PNG and the lack of capacity of the PNG government and institutions.

In the same statement, Saul also made it clear that the quality of the status determination processes in PNG is likely to be very poor and not in conformity with international standards. It all points to the fact of having proper mechanisms to regulate the consequences of the deal.

Past governments have been experts in running into signing such deals without having proper regulatory institutions to house and cater for the accruing consequences. A good example, amongst others, in this light is the carbon trade. Papua New Guinea has signed the agreement amongst member countries to help reduce carbon emission. However, without a proper regulatory institution in place, the people don’t know where and how the benefits that are due to them would be handled.

Without a proper mechanism in place, the expected benefits of the asylum seeker deal will, most likely be dealt with in an ad hoc and arbitrary manner.

Third, the deal is against International Law and other supporting legislation. For example, Australia is likely to violate Article 31 of the refugee convention not to penalize an asylum seeker on account of his or her “illegal” mode of entry to Australia. The deal also brings to question Section 42 of PNG Constitution, particularly Subsections 1 (f) and (g).These sections stipulate that for the purpose of preventing the introduction of diseases or suspected diseases, whether by human, animals or plants…or for the purpose of preventing unlawful entry of a person into Papua New Guinea…respectively, a person shall not be deprived of his personal liberty. The dilemma here in that the deal brings into  question these principles of the Constitution as there are no proper systems and laws in place to ensure that. What guarantee is there that the principles of the refugee convention and the PNG constitution will not be violated? Most fundamental of all, it is not clear whether the deal would be administered under PNG or Australian jurisdiction? If it is the latter, then PNG’s sovereignty will most likely be compromised. This is a large part of the reason why sections of the PNG public have been vocal on the deal.

In terms of the benefits, the Government of Papua New Guinea, together with various individuals and business houses, has largely hinged their argument on the spin off benefits that will be enjoyed from the asylum seeker deal.

First, when signing the deal, the understanding between the two Governments – PNG and Australia, was that funds will be chipped in to reform major University sectors and a construction of a major referral hospital in Lae.

Second, as a friend and a neighbor, with relationships going back to World War II, PNG felt it mandatory to reciprocate its regional obligations. Australia has always been good at all fronts-development aid, rescue mission, trade, security etc.

In addition to that, certain individuals and business houses are of the view that the deal will promote business activities and enhance economic growth. Business organizations will contribute to the development of proper processes to be put in place and also supply what it would need to keep the detention center functioning, such as proper water supply, sanitation and infrastructure maintenance.

There are other pros and cons of the deal that need careful attention.

First, Australia has the vast expanse of land to resettle the refugees, knowing that PNG lacks technical capacities to adequately deal with the issues that may transpire afterwards.

Second, Australia is kind of deliberately running away from it regional obligations, pertaining to her commitment when she signed at the refugee convention in 1954, to protect refugees from further prosecution. She probably may have reflected her incapacity to handle sensitive regional issues by signing the deal.

Third, PNG does not need extra money or aid to enhance its economic development.  Definitely not. We have a lot of agricultural and extractive industries, combined with the expected massive revenue from the PNG LNG gas - there would be sufficient financial liquidity to sustain and enhance economic development of the country.

Notwithstanding the economic benefits, the negative repercussions need to be carefully considered. They include potential violation of international laws, sections of the PNG constitution, and other supporting legislation like the Article 31 of the refugee convention. The PNG government could lose its popularity in the aftermath of the deal. There are sovereignty issues as mentioned above.

The deal boils down to a diplomatic power game in which Kevin Rudd can claim victory, in light of the looming federal elections in Australia. For PNG, on balance, the sovereignty and human rights issues are of more fundamental importance than the financial and economic benefits. Did PNG give the game away to Australia?

* Gande James is a Research Cadet under the Governance Research program at the National Research Institute.