Asylum case out

Main Stories, National

The National, Friday July 5th, 2013


THE Supreme Court yesterday dismissed Opposition leader Belden Namah’s Supreme Court challenge on the constitutionality of the agreement between PNG and Australia to establish an asylum processing centre on Manus.

But Loani Henao, acting for Namah, declared his intention to renew the challenge, moments after Justice David Cannings dismissed the case.

The court upheld an objection to competency application by Foreign Affairs Minister Rimbink Pato and the National Executive Council who cited three grounds for dismissal. 

Their lawyer, Ian Molloy, said that:

  • Namah’s application was not in the form prescribed by the Supreme Court Rules 2012;
  • The application was not signed by the applicant, in this case Namah, as required by the Supreme Court Rules 2012; and
  • Questions of law and fact raised by the application were not questions of constitutional interpretation or application and therefore were not proper matters for inclusion in section 18 (1) proceedings.

A full Supreme Court bench comprising Justices David Cannings, Stephen Kassman and Jacinta Murray, found grounds one and two of the objection were sufficient to render the proceedings incompetent, which meant that the proceedings had to be entirely dismissed.

On the questions of law and fact, the judges did not agree with Molloy’s assessment that the nature of the issues raised had any consequence. 

The court found that Namah’s application raised at least one issue of constitutional interpretation or application, which appeared not to be trivial, vexatious or irrelevant and ruled that it should be regarded as competent and be allowed to progress to hearing even though it appeared to contain other questions that were not of a constitutional nature.

“Here, the amended originating summons raises significant issues of constitutional interpretation and application,” Cannings said while handing down the court’s decision.

 “The inclusion of what might appear to be non-constitutional issues is of no consequence in so far as the competency of the proceedings is concerned. Ground three of the objection is dismissed.” 

Henao had argued that the agreement between PNG and Australia to establish the Manus asylum-seeker detention centre was illegal because it breached the Constitution.

Henao told reporters outside the court yesterday the court’s decision was helpful as it clarified the confusion brought by the Supreme Court rules (2012) on procedures of starting proceedings.

Outside the court, Mr Henao said he was happy with the decision but would begin work on a fresh challenge.

“It brings clarity to the issues in the proceedings,” he told reporters.

“We will now proceed to resurrect the application … we will be filing that definitely either Monday or Tuesday next week.

“Namah is definitely proceeding with this matter.”