ASYLUM-PROCESSING UNDER PNG & NAURUAN LAWS: LAWFUL OR UNLAWFUL ?

In connection with the conduct of Australian Border Force detaining 53 asylum-seekers in PNG in (2019-2020), also know as "Bomana Prisoners",I have raised following questions. This page is second part of answers.
THE CONDUCT:
(i) The Australian government had transported asylum-seekers to the safe third country, i.e. PNG & Nauru; and
(ii) then subjected those asylum-seeker's refugee applications to process under the national laws of those safe third countries.

1. Are these practices (i) & (ii), in line with any known international practices ?
2. Has the government giving executive order in relation to (ii) being lawful ?
3. The Commonweath Government with support of Parliament or, in other words, Australia as a State, have the right to process the asylum-seekers under UN Refugee Convention, the manner in which it described in (ii) ?

Those asylum-seekers transported to PNG and Nauru in 2012-2013 had been processed under PNG and Nauruan Laws. The private law firm(s) were deployed to conduct interviews with asylum-applicants. The Craddock Murray Newmann Lawyers had been one of the contractor(s) for Nauru [#1]. The then Immigration Minister, Scott Morrison, giving order to process under PNG laws had caused disturbances on Manus Island; and having it caused the death of asylum-seeker Riza Barati [#2]. The Immigration Department (ABF) had given advise to interviewers that the asylum-seekers on PNG were to be resettled in PNG, but not in Australia nor any third country. Of course, it is to everyone's knowledge that PNG could not -- would not -- handle resettlement of these asylum-seekers. This fact has been confirmed by Namah & Pato PNG Supreme Court document [#3]:

26. Both Australia and PNG are signatories to the United Nations 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. PNG's signing is however with 7 reservations. The reservations are in respect of Article 17(1) (wage earning employment); Article 21 (housing); Article 22(1) (public education); Article 26 (freedom of movement); Article 31 (non-penalisation of refugees for illegal entry or stay); Article 32 (expulsion) and Article 34 (naturalization). (Namah & Pato, PNG SC1497)

This, of course, is PNG Supreme Court judges' confirmation on the commonly held public knowledge that the "PNG is not a viable resettlement country". So then, how do we describe the conduct of Immigration Minister Scott Morrison and his Department in 2014, of which it giving instruction, i.e. Executive Order, for the asylum-seekers to resettle in PNG ? We note that such conduct has been certain form of abuse of power. It is like a cruel joke played upon the down trodden, of which it immediately offended your conscience. But how can we identify such conduct as the abuse of power and, whether such conduct is within the lawful limits of the Ministerial powers?

This 2014 Australian Government's position, i.e. processing asylum-seekers under PNG (Nauruan) laws and then resettling asylum-seekers in PNG, has now shifted somewhat onto resettling them in USA, under public pressure. We've got to examine whether these conducts are the lawful exercise of powers by the Australian Government. In this discussion, I'll refer the term Commonwealth Government (Commonwealth) as combination of the Parliament and Executive; The Executive as the branch of government comprising of the Prime Minister, Cabinet Members and their departments.

ADMINISTRATIVE DECISIONS JUDICIAL REVIEW ACT 1977

Australian system of law and the government have a strong common laws traditions, and at the apex constitution as the supreme law of the land. The Executive and Commonwealth as a whole must adhere to the principle of legality, meaning that a government action requires an identifiable source of legal authority [#5]. For general public, there is a way to check the lawfulness of a particular instance of government exercise of power. The Administrative Decisions (Judicial Review, 1977) Act, ADJR [#4] outlines whether a particular conduct by government and its agency being within the lawful bounds. To note also, the ADJR is referenced here as just a guide to identify the unlawfulness of governmental action. For offshore cases, the ADJR might not be directly applicable!

The ADJR identified following conducts may indicate unlawfulness [#4]:

"1.(c) that the person who purported to make the decision did not have jurisdiction to make the decision;
"1.(e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made; -- an improper exercise of a power shall be construed as including a reference to: "2.(g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;

Is that Scott Morrison and his Immigration Department giving the Executive Order, telling the asylum-seeker on Manus to resettle in PNG, a "reasonable one"? That surely is an improper exercise of the power, that is so unreasonable that no reasonable person could have done so. This conduct, indeed, can be identified as the abuse of power within a court of law.

Also the Australian Immigration ordering the offshore asylum application to be processed under the laws of PNG/Nauru violates jurisdiction. Obviously, an Australian Minister should not operate on the laws of another sovereign country; Nor the Commonwealth Government can have any jurisdiction on PNG. Such exercise of power must be outside the province of Australian constitution and laws; i.e. that governmental action exceeds its legal authority (ultra vires: beyond its power).

Of course, the Australian government generally argue -- have argued -- these actions can be justified as the Executive Orders operating under the Government-to-Government MOUs (executive power, incidental); actions being endorsed by Parliament (s 198AHA, statutory authority); or the Contractors had been given legal authority by PNG/Nauruan Governments. At a closer look with the detailed analyses, none of these arguments will stand up.

REALPOLITIK, TRANSFIELD CONTRACTS AND REZA BARATI

(Broadcast: 8-Mar-2020)
The underlying motives behind this highly "unreasonable" direction given in February 2014 and given message to asylum-seekers to "go home or else" [#6] by the then Immigration Minister Scott Morrison can be best understood by noting the Transfield Services P/L desire to monopolise all government's offshore detention facilities. Remember, these insights are on the public record since 2016, the report by Office of National Auditor [#8] and the Saturday Paper review of it by journalist Karen Middleton [#7]. I especially invite our readers to look at the review article and Section 3 of ANAO report.

Early on 2012, the Transfield had expressed its business interests in offshore detention works on Nauru and a contract was granted. Remember, Transfield Services P/L had long been working with governments on other infrastructure projects and it is highly influential on both sides of politics. The cost raised up was based on ADF garrison rate (see Saturday Paper):

"The audit office found repeated examples of departmental records being non-existent or having disappeared. The paperwork for Transfield’s Nauru contract showed the costing eventually agreed upon was based on rates derived from the company’s involvement in a Defence panel on garrison services."

The profit margin for Transfield, sure, must be high on offshore contracts -- servicing the asylum-seekers at the price of ADF personnels. Transfield was looking to expand its work on Manus Island. Notably in October 2013, the Transfield Chief, Tony Shephard was inducted into Prime Minister Tony Abbott's Offices [#7]. They (DIBP, Transfield) were hatching plans since Nov/Dec 2013 to thrown out rival G4S from the offshore tender process, according ANAO report (Para 3.27-3.33, [#8]). The government's internal communication trail noted in ANAO report:

"3.23 On 28 November 2013, the CPU sought Finance advice on conducting a limited tender relying on paragraph 10.3(b) of the (Commonwealth Procurement Rules) CPRs—relating to urgent and unforeseen circumstances."

"3.28 In response to the information provided by the department’s Central Procurement Unit (CPU), Finance advised DIBP on 28 November 2013 that limited tender could apply on the basis of poor performance of the existing provider, a new supplier is required immediately, and that the department’s decision is not made following a review to decide whether to exercise the extension option, with the intention of finding a new supplier."

The then DIBP Secretary Martin Bowles (Scott Morrison the Immigration Minister) approved the Transfield as leading contractor for "Garrison and Welfare" of Manus and Nauru detainees. The death of Reza Barati on Feb 2014 can be viewed in this context [#9]. On March 2014, the G4S group was out, replaced by Transfield/Wilson Security on Manus. The ANAO officially requested DIBP the reason why G4S contract on Manus was not extended, despite of its price competitiveness, received no satisfactory answers.

In the light of these findings, the above mentioned highly unusual conducts on PNG asylum-seekers by the then Immigration Minister Scott Morrison were driven so as to shore up Transfield's desires for consolidation and maintenance of offshore detention centres. This type of construction of evidence, neither "far fetched nor fanciful", might be allowable to be submitted to the court. In this case, the relevant ADJR analogy of ultra vire can be found in the followings:

The ADJR identified following conducts may indicate unlawfulness [#4]:

"1.(g) that the decision was induced or affected by fraud;
[ The conduct was induced by political corruption. ]
"1.(e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made; -- an improper exercise of a power shall be construed as including a reference to: "2.(c) an exercise of a power for a purpose other than a purpose for which the power is conferred; [ The power entrusted to immigration minister is to bring an end to the detention of asylum-seekers, not to make prolong stay of the detainees offshore.]

Keep checking for update on Bomana pages.
Cheers, NetIPR.

Guardian/2014/Scott Morrison
[#6] https://www.theguardian.com/world/video/2014/jun/25/scott-morrisons-urge...
Saturday Paper (2016)
[#7] http://www.aus4iccwitness.org/docs/20160917_transfield-offshore-processi...
Australian National Auditor Report (2016)
[#8] http://www.aus4iccwitness.org/docs/20160913_anao-offshore-report.pdf
NetIPR/Reza Berati
[#9] https://www.facebook.com/groups/1648810632007956/permalink/2497183027170...
[#5] http://www.unistudyguides.com/wiki/Controlling_the_Executive
Administrative Decisions Judicial Review 1977
[#4] http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/adra1...
Namah & Pato, PNG Supreme Court
[#3] http://www.aus4iccwitness.org/legal-resources/20160426_namah-n-pato-png-...
Liz Thompson SBS/Transcript
[#2] https://www.sbs.com.au/news/sites/sbs.com.au.news/files/transcripts/3822...
M68/2016 HCA Judgment
[#1] http://www.aus4iccwitness.org/legal-resources/20160203_m68-hca-judgment.pdf
"209 The Commonwealth has also contracted for the provision of services at the Nauru RPC with several other providers, such as Save the Children Australia, International Health and Medical Services Pty Ltd, Craddock Murray Neumann Lawyers Pty Ltd, Adult Multicultural Education Services, and the Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane, trading as Brisbane Catholic Education."