PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (HR) NO 9 OF 2013

BELDEN NORMAN NAMAH MP,LEADER OF THE OPPOSITION

Plaintiff

V

RIMBINK PATO MP,MINISTER FOR FOREIGN AFFAIRS & IMMIGRATION

First Defendant

THE NATIONAL EXECUTIVE COUNCILSecond Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEAThird Defendant

WAIGANI: CANNINGS J

13, 14 FEBRUARY 2013

Injunctions – interim injunctions – persons seeking asylum – whether to grant interim injunction to restrain defendants from receiving or transferring further asylum seekers to relocation centre pending determination of proceedings challenging arrangements for their detention.

Human rights – Constitution Section 42(2) – rights of persons detained – right to communicate with lawyer of their choice.

The plaintiff, the Leader of the Opposition, commenced proceedings by originating summons seeking declarations that a memorandum of understanding between Papua New Guinea and Australia relating to the transfer to Papua New Guinea and assessment of persons seeking asylum and the continuous deprivation of their liberty at a place declared under the Migration Act to be a relocation centre are unconstitutional and that exemptions by the Minister for Foreign Affairs and Immigration (the first defendant) under the Migration Act relating to those persons are void and of no effect and a permanent injunction restraining the defendants from detaining those persons at the relocation centre. After commencement of the proceedings the plaintiff applied by motion for two interlocutory orders. First an interim injunction, pending determination of the substantive proceedings, that the defendants be restrained from receiving or

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transferring any further asylum seekers from Australia in the relocation centre. Secondly an order that the plaintiff’s lawyers be granted access to the relocation centre to get statements and affidavits from some of the persons.

Held:

(1) The primary considerations to be taken into account when the court decides how to exercise its discretion whether to grant an interim injunction are: (a) are there serious questions to be tried and does an arguable case exist? (b) has an undertaking as to damages been given? (c) would damages be an inadequate remedy if the interim order is not granted? (d) does the balance of convenience favour the granting of the interim order? (e) do the interests of justice require that the interim order be made?

(2) Here: (a) there are serious questions to be tried and the plaintiff has a serious not merely speculative case, however the prospects of ultimate success are tempered by question marks over whether the plaintiff actually has a sufficient interest in the matter, whether the proceedings have been properly commenced in the National Court and whether concerns about alleged human rights breaches would be better prosecuted by way of enforcement proceedings under Section 57 of the Constitution and whether the proceedings are an abuse of process; (b) an undertaking as to damages has been given; (c) damages would be an inadequate remedy. Only (b) and (c) really favour granting the interim injunction; (a) is the most significant factor and it is neutral.

(3) On the other hand: (d) the balance of convenience does not favour granting an injunction in the terms sought and (e) the interests of justice do not require that the injunction be granted. As two of the five considerations do not favour its granting, an interim injunction in the terms sought by the plaintiff will be refused.

(4) As to the application for an order allowing the plaintiff’s lawyers access to the relocation centre, despite lack of clarity as to the terms of the order sought and the grounds on which it was being sought, the information before the court suggests that the asylum seekers have been “detained” but have not been accorded their rights as detained persons under Section 42(2) of the Constitution including being permitted whenever practicable to communicate without delay and in private with a lawyer of their choice and given adequate opportunity to give instructions to a lawyer of their choice in the place in which they are detained.

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(5) This serious concern on the part of the court is best remedied by granting the plaintiff’s lawyers access to the relocation centre, so an order to that effect was made.

Cases cited

The following cases are cited in the judgment:

Application of Jim Kas, Governor of Madang (2001) SC670Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853Ewasse Landowners Association Inc v Hargy Oil Palms Ltd (2005) N2878In the Matter of the Right Honourable M T Somare [1981] PNGLR 265Lowa v Akipe [1991] PNGLR 265Marthinus Kambu v Sir Pita Lus (2010) N4437Ramu Nico Management (MCC) Ltd v Eddie Tarsie (2010) SC1075SCR No 7 of 2008, Reference by Ken Norae Mondiai (2010) SC1087SCR No 5 of 1985; Re Raz v Matane [1985] PNGLR 329SCR No 6 of 1987; The State v Songke Mai & Gai Avi [1988] PNGLR 556Tarsie v Ramu Nico (MCC) Ltd (2010) N3960Telikom PNG Ltd v Newsat Ltd (2007) N3451The State v Linus Rebo Dakoa (2009) N3586The State v Paro Wampa [1987] PNGLR 120

Counsel

L R Henao & W Bigi for the plaintiffP Kuman & T Tanuvasa for the defendants

CANNINGS J: This is a ruling on an application by the plaintiff, Belden Norman Namah MP, the Leader of the Opposition, for two interlocutory (pre-trial) orders:

(1) an interim injunction to stop any more asylum seekers being sent to the relocation centre at Lombrum Naval Base, Manus Province; and

(2) an order allowing his lawyers access to the relocation centre.

The application was filed following commencement by the plaintiff of proceedings which challenge amongst other things the constitutionality of arrangements made between the Governments of Papua New Guinea and Australia that have resulted in a number of people who had arrived in Australia seeking refugee status (known generally as ‘asylum seekers’) being transferred

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to the regional processing facility, also known as a relocation centre, at Lombrum.

THE FIRST ORDER SOUGHT: AN INTERIM INJUNCTION

The plaintiff seeks by paragraph 1 of the amended notice of motion filed on 8 February 2013 an interim injunction restraining the defendants (Rimbink Pato MP, the Minister for Foreign Affairs and Immigration; the National Executive Council and the State) from “receiving or transferring any further asylum seekers from Australia into the relocation centre in Manus Province under the terms of the [Memorandum of Understanding between Papua New Guinea and Australia] pending the determination of this proceeding”. The primary considerations to be taken into account when a person seeks an interim injunction were confirmed by the Supreme Court in Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853 as being:

(a) are there serious questions to be tried and does an arguable case exist?

(b)has an undertaking as to damages been given?

(c) would damages be an inadequate remedy if the interim order is not made?

(d)does the balance of convenience favour the granting of interim relief?

(e) do the interests of justice require that the interim injunction be granted?

Those considerations have been set out so that a ‘yes’ answer will be a factor weighing in favour of granting an interim injunction and a ‘no’ answer will work against making such an order.

(a) Are there serious questions to be tried and does the plaintiff have an arguable case?

This requires the Court to make an assessment of the prospects of success of the plaintiff’s substantive action by looking at the originating process (in this case, the originating summons) and the evidence that has been adduced to date. The issue is not simply whether the plaintiff has raised serious allegations, but whether he appears to have a reasonable prospect of succeeding in the substantive case (Ewasse Landowners Association Inc v Hargy Oil Palms Ltd (2005) N2878). Put another way, the court assesses whether there are serious questions to be tried and the plaintiff has a serious, not merely speculative, case, with a real possibility of ultimate success.

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The plaintiff wants this matter to go to trial so he can seek the following relief:

A declaration that the memorandum of understanding between Papua New Guinea and Australia relating to the transfer to Papua New Guinea and assessment of persons seeking asylum, which was executed on 8 September 2012, is unconstitutional (paragraph 1 of the originating summons).

A declaration that the continuous deprivation of the liberty of the asylum seekers at Lombrum is unconstitutional (paragraph 2 of the originating summons).

Declarations that exemptions and directions by the Minister for Foreign Affairs and Immigration under the Migration Act relating to the asylum seekers are void and of no effect (paragraph 3, 4 and 5 of the originating summons).

A permanent injunction restraining the defendants from detaining the asylum seekers at the relocation centre (paragraph 6 of the originating summons).

Mr Henao for the plaintiff has advanced two principal arguments to support the claim for relief. The first one is based on Section 42 (liberty of the person) of the Constitution, and appears to be relied on to support the relief sought in paragraphs 1, 2 and 6 of the originating summons. Section 42 is one of the human rights provisions of the Constitution. It confers the right of personal liberty on all persons in Papua New Guinea (citizen or non-citizen) but provides that a person can be deprived of that right in certain circumstances. It is a qualified right. Section 42(1) states:

No person shall be deprived of his personal liberty except—

(a) in consequence of his unfitness to plead to a criminal charge; or(b) in the execution of the sentence or order of a court in respect of an offence

of which he has been found guilty, or in the execution of the order of a court of record punishing him for contempt of itself or another court or tribunal; or

(c) by reason of his failure to comply with the order of a court made to secure the fulfilment of an obligation (other than a contractual obligation) imposed upon him by law; or

(d) upon reasonable suspicion of his having committed, or being about to commit, an offence; or

(e) for the purpose of bringing him before a court in execution of the order of a court; or

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(f) for the purpose of preventing the introduction or spread of a disease or suspected disease, whether of humans, animals or plants, or for normal purposes of quarantine; or

(g) for the purpose of preventing the unlawful entry of a person into Papua New Guinea, or for the purpose of effecting the expulsion, extradition or other lawful removal of a person from Papua New Guinea, or the taking of proceedings for any of those purposes; or

(h) in the case of a person who is, or is reasonably suspected of being of unsound mind, or addicted to drugs or alcohol, or a vagrant, for the purposes of—

(i) his care or treatment or the protection of the community, under an order of a court; or

(ii) taking prompt legal proceedings to obtain an order of a court of a type referred to in Subparagraph (i);

(i) in the case of a person who has not attained the age of 18 years, for the purpose of his education or welfare under the order of a court or with the consent of his guardian.

Mr Henao submits that the asylum seekers have been deprived of their personal liberty – their movement has not been merely restricted – but not in any of the circumstances permitted by Sections 42(1)(a) to (i). The only one of those circumstances that can arguably come close to describing the situation at Lombrum is Section 42(1)(g): they have been deprived of their personal liberty for the purpose of preventing the unlawful entry of persons into Papua New Guinea, or for the purpose of effecting the expulsion, extradition or other lawful removal of persons from Papua New Guinea, or the taking of proceedings for any of those purposes. That is not an accurate description, however, as the asylum seekers have not been deprived of their personal liberty for the purpose of preventing anyone’s unlawful entry into Papua New Guinea. Mr Henao submits that the asylum seekers had no say in their coming to Papua New Guinea. They have been forced here.

I find this argument based on Section 42(1) of the Constitution at this preliminary stage of the proceedings, and bearing in mind that the argument has been advanced and considered without the benefit of full and researched submissions from both sides, to be rather impressive. There are serious allegations here of unconstitutionality and ongoing breaches of human rights affecting a large number of people (the Lombrum centre’s Administrator Mataio Rabura ISO deposes in an affidavit that on 13 February 2013 there were 276 asylum seekers at the centre). There are also related and serious questions that would seem likely to arise, if this matter goes to trial, about whether the circumstances in which the asylum seekers are being held amounts to a breach of Papua New Guinea’s obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol, to which it is a signatory,

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albeit subject to various reservations (Marthinus Kambu v Sir Pita Lus (2010) N4437). I consider that the Section 42(1) argument involves serious questions of law and that the plaintiff has placed before the court a serious, not merely speculative, case.

The plaintiff’s second principal argument is based on Sections 15A, 15B, 15C and 15D of the Migration Act 1978 and appears to be relied on to support the relief sought in paragraphs 3, 4 and 5 of the originating summons. These provisions allow the Minister for Foreign Affairs and Immigration to determine a non-citizen to be a refugee, to declare a place to be a “relocation centre”, to direct non-citizens claiming to be refugees to reside in a relocation centre and to appoint an officer as the Administrator of a relocation centre. Mr Henao submits that these provisions and others including Section 20 (which allows the Minister to exempt classes of persons from the provisions of the Act) are intended to be invoked only in the case of persons who seek refugee status in Papua New Guinea, not by persons who seek refugee status in other countries such as Australia. The evidence will show, Mr Henao submits, that none of the asylum seekers at Lombrum seek refugee status in Papua New Guinea.

As in the case of the first principal argument, I find this argument based on the Migration Act at this preliminary stage of the proceedings, and without the benefit of full and researched submissions from both sides, to be rather impressive. There are serious allegations of unlawfulness and misapplication of the Act. The plaintiff has placed before the court a serious, not merely speculative, case.

What I have just said supports the case for an interim injunction. What I say next diminishes the case. As impressed as I am with the two principal arguments advanced by Mr Henao I am also impressed by the arguments put by Mr Kuman for the defendants that the plaintiff lacks standing (a sufficient legally recognisable interest in the subject matter of the proceedings) and that the proceedings are procedurally defective. Does the Leader of the Opposition have a sufficient interest in the constitutionality of the arrangements made between the National Government and the government of another country or in the question of whether the human rights of persons detained pursuant to such arrangements are being breached, to warrant his being permitted to maintain these proceedings? The decision of the Supreme Court in In the Matter of the Right Honourable M T Somare [1981] PNGLR 265 suggests that the answer might be in the affirmative, if these proceedings had been commenced in the Supreme Court. But they are in the National Court and this leads to what appears to be a valid jurisdictional question: does the National Court have jurisdiction to determine proceedings such as this which are so centrally focussed on interpretation and application of provisions of the Constitution? Mr

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Kuman submits that the originating summons is raising constitutional questions that fall within the original jurisdiction of the Supreme Court under Section 18(1) of the Constitution, which states:

Subject to this Constitution, the Supreme Court has original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law.

He refers to the Supreme Court’s decision in Lowa v Akipe [1991] PNGLR 265 to argue that plaintiffs who wish to frame a cause of action on breaches of the Constitution must invoke the original jurisdiction of the Supreme Court under Section 18(1). An action cannot be founded in the National Court under Section 18(2) of the Constitution, which states:

Subject to this Constitution, where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal, other than the Supreme Court, the court or tribunal shall, unless the question is trivial, vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate.

In Lowa v Akipe it was acknowledged that questions of constitutional interpretation and application can arise during the course of “ordinary litigation” in the National Court. If such a question “arises” (and cases such as SCR No 5 of 1985; Re Raz v Matane [1985] PNGLR 329 indicate when they “arise”), then – but only then – is the National Court obliged to refer it to the Supreme Court (Telikom PNG Ltd v Newsat Ltd (2007) N3451). But are the present proceedings ‘ordinary litigation’? I don’t think so.

Perhaps the plaintiff ought to have commenced the proceedings and sought to prosecute this apparently constitutional cause of action in the Supreme Court under Section 18(1) of the Constitution, in accordance with the procedural guidelines provided by the Supreme Court’s decisions in Application of Jim Kas, Governor of Madang (2001) SC670 and SCR 7 of 2008, Reference by Ken Norae Mondiai (2010) SC1087. Perhaps the constitutional questions he wishes to put before the National Court would be better put before the Supreme Court by a referring authority such as the Public Solicitor or the Ombudsman Commission under Section 19 (special references to the Supreme Court) of the Constitution.

On the other hand, perhaps the National Court does have jurisdiction as the plaintiff is seeking enforcement of duties imposed by the Constitution and Sections 22 (enforcement of the Constitution) and 23 (sanctions) of the Constitution allow the National Court to amongst other things give effect to the provisions of the Constitution that recognise rights of individuals (s 22) and

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make orders for remedying breaches of duties imposed by the Constitution (s 23(2)).

Mr Kuman submits that the plaintiff is guilty of an abuse of process as he is really pursuing a constitutional reference but doing so under the guise of enforcement proceedings under Section 57 (enforcement of guaranteed rights and freedoms) of the Constitution (which provides the direct means by which a person comes to the National Court to enforce human rights) and exacerbating the abuse by not referring to or relying on Section 57 of the Constitution. The plaintiff appears to be seeking to enforce the human rights of the asylum seekers but does not name who they are and has made no attempt to join them to the proceedings. A notice of motion seeking dismissal of the proceedings on those and other grounds was filed on 12 February 2013. They are serious issues which demand the attention of the court.

To conclude my assessment of the first criterion: yes, there are serious questions to be tried and the plaintiff has a serious not merely speculative case, however the prospects of ultimate success are tempered by question marks over whether the plaintiff actually has a sufficient interest in the matter, whether the proceedings have been properly commenced in the National Court, whether concerns about alleged human rights breaches would be better prosecuted by way of enforcement proceedings under Section 57 of the Constitution and whether the proceedings are an abuse of process. In short the answer to (a) is yes and no.

(b) Has an undertaking as to damages been given?

Mr Kuman submitted that the undertaking given by the plaintiff is inadequate as he has not demonstrated that he has the financial capacity to meet any claim for damages against him by the defendants that might arise if the matter goes to trial and he loses.

I am not convinced by the argument. The plaintiff has done enough. He has signed an undertaking. I maintain the view I expressed in Tarsie v Ramu Nico Management (MCC) Ltd (2010) N3960, which was endorsed by a majority of the Supreme Court in Ramu Nico Management (MCC) Ltd v Eddie Tarsie (2010) SC1075 that the court should be wary of imposing stringent requirements about undertakings on individual citizens who wish to challenge the legality of government decisions in court. The undertaking has been given and it is an adequate undertaking.

(c) If an interim injunction were not granted, would damages be an inadequate remedy?

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What will happen if the injunction is not granted, but it turns out the plaintiff succeeds at the trial and proves that the defendants have acted unlawfully? Would damages be an inadequate remedy? The answer is yes. The plaintiff is not seeking damages. He is seeking declarations and orders only.

(d) Does the balance of convenience favour the granting of the injunction?

As I said in Ewasse Landowners Association Inc v Hargy Oil Palms Ltd (2005) N2878 this requires the court to ask: what is the best thing to do on an interim basis taking into account the conflicting interests? What will happen if an injunction is not granted? What will happen if the injunction is granted? Who will suffer the greatest inconvenience or prejudice?

I uphold the submission of Mr Kuman that if an injunction is not granted, the plaintiff will suffer no or negligible prejudice. It is not his rights that he is seeking to enforce. He will not lose out on anything if the injunction is not granted. He has an interest, as a citizen, in seeing that the Rule of Law is maintained and he has a duty in a political sense as Leader of the Opposition to hold the Government to account. But his interest and his duty in that regard will not be impaired by refusal of the application for the interim injunction. Neither will the rights or interests of the present asylum seekers at Lombrum be prejudiced by there being no interim injunction.

By contrast if the interim injunction is granted, this will cause significant inconvenience and prejudice to the defendants. It would impair their ability to carry out their obligations under the memorandum of understanding with Australia. The balance of convenience favours preservation of the status quo. Question (d) is answered no.

(e) Do the interests of justice require that the interim injunction be granted?

I do not think so. I do not see any injustice to the plaintiff or any other persons including the asylum seekers presently at Lombrum or those who might imminently be transferred there, that would result from a refusal of the interim injunction. I can by contrast see that the defendants would reasonably perceive an injustice if the court were to without being fully satisfied that something unconstitutional or unlawful had occurred to injunct arrangements that had been entered into in good faith by two independent governments dealing with such significant regional issues such as assessment of claims for refugee status by

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persons claiming persecution in other countries and seeking asylum. I uphold Mr Kuman’s submission that the court should exercise restraint.

I do not however agree with Mr Kuman’s argument that the plaintiff has been guilty of undue delay in commencing these proceedings. The first asylum seekers arrived on Manus on 21 November 2012, less than three months ago. The plaintiff has acted reasonably quickly in getting these issues before the court. That said, the interests of justice do not require that an interim injunction be granted. Question (e) is answered no.

Conclusion on the first order sought

Summing up the five considerations: (a) there are serious questions to be tried and the plaintiff has a serious, not merely speculative case, however the prospects of ultimate success are tempered substantially by a number of arguments raised by the defendants; (b) an undertaking as to damages has been given; (c) damages would be an inadequate remedy. Only (b) and (c) really favour granting the interim injunction; (a) is the most significant factor and it is neutral. On the other hand: (d) the balance of convenience does not favour granting an interim injunction; and (e) the interests of justice do not require that the injunction be granted. As only two of the five considerations favour its granting, two work against it and one – the most important one – is neutral, an interim injunction in the terms sought by the plaintiff will be refused.

THE SECOND ORDER SOUGHT: ALLOWING LAWYERS ACCESS TO LOMBRUM

The plaintiff seeks by paragraph 2 of the amended notice of motion filed on 8 February 2013 an order that his lawyers “be granted access to the Manus Regional Processing Centre to get sworn statements and/or affidavits from the individuals whose statements are annexed to the supplementary affidavit of Belden N Namah filed 8 February 2013”. There is evidence before the Court that a request for access to the Centre by the plaintiff’s lawyers has been declined.

In oral submissions Mr Henao seemed to considerably expand the terms of the order being sought by requesting the court to grant a blanket order allowing access to the Centre rather than just to the limited number of persons whose statements are annexed to the plaintiff’s affidavit. Mr Kuman pointed this out in his submission opposing the order sought and marshalled an array of procedural arguments to support the defendants’ position. I won’t go into those arguments as they had little merit and they failed to address what I consider to be a serious concern, which I aired at yesterday’s hearing: there are 271 people including 30

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children presently being detained at Lombrum, they are being treated as asylum seekers, they have not been charged with any offences, they have been deprived of their personal liberty.

Mr Rabura in his affidavit asserts that ‘it would be wrong to view the processing arrangements as an act of deprivation of liberty of the asylum seekers. The process is necessary for the benefit of all concerned and must be undertaken’. I am not saying that it is not necessary for the existing processing arrangements to be undertaken. However, at this stage I cannot see that they have not been deprived of their personal liberty. I am using the term “detained” advisedly. It is a term used by Section 42(2) of the Constitution. A person is detained if he or she is deprived of their personal liberty (SCR No 6 of 1987; The State v Songke Mai & Gai Avi [1988] PNGLR 556). A person who is detained is entitled to the protection of Section 42(2) of the Constitution which states:

A person who is arrested or detained—

(a) shall be informed promptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him; and

(b) shall be permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend, and with a lawyer of his choice (including the Public Solicitor if he is entitled to legal aid); and

(c) shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained,

and shall be informed immediately on his arrest or detention of his rights under this subsection.

Whenever a person is detained he acquires five distinct rights (The State v Linus Rebo Dakoa (2009) N3586). He shall be:

informed promptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him; and

permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend; and

permitted whenever practicable to communicate without delay and in private with a lawyer of his choice; and

given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained; and

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informed immediately on his arrest or detention of his rights under Section 42(2).

These rights must be administered as soon as a person is detained. The timing is critical (The State v Paro Wampa [1987] PNGLR 120).

I acknowledge, as pointed out by Mr Kuman, the lack of clarity as to the terms of the order being sought by the plaintiff and the grounds on which it is being sought (the notice of motion does not mention Section 42(2)). Mr Kuman also points out that it is unclear that the plaintiff’s lawyers, Henaos, are the “choice” of any other asylum seekers. There is a risk, in view of the fact that this case has been initiated by the Leader of the Opposition, that his lawyers might visit the Centre not for the primary purpose of providing legal advice and assistance to asylum seekers but to advance the plaintiff’s political agenda. These are valid considerations that weigh in favour of rejection of the second order sought by the plaintiff. However, the risks involved are outweighed by the primary and overriding concern of the Court, which is this: the information presently before the court suggests that the asylum seekers have been “detained” but they have not been accorded their five rights as detained persons under Section 42(2) of the Constitution. In particular they have not been permitted to communicate without delay and in private with a lawyer of their choice. They have not been given adequate opportunity to give instructions to a lawyer of their choice in the place in which they are detained. It might turn out that the impression that I have gained about such an apparent serious breach of human rights is ill-founded; and if that is the case the order that I am going to make, which is an interim order, can be varied. If the order is exploited for improper purposes by the plaintiff or his lawyers it is also open to variation.

The second order sought will be granted in principle. I will order the Administrator of the Centre or whoever is lawfully in charge of it to forthwith administer to asylum seekers accommodated at the Centre their rights under Section 42(2) of the Constitution and to grant forthwith reasonable access by the plaintiff’s lawyers to the Centre so that the asylum seekers may, if they wish, communicate with those lawyers and be provided with legal advice and assistance by them and give instructions to them. In making an order in those terms I refer to paragraph 3 of the amended notice of motion of 8 February 2013, by which the plaintiff sought “such further orders or directions as the court may seem appropriate” [sic]. I also rely on the power of the National Court under Sections 57(1) and 57(3) of the Constitution to on its own initiative enforce the human rights of the asylum seekers, in this case their rights under Section 42(2). I consider that an order to enforce those rights is necessary and appropriate.

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CONCLUSION

The application for an interim injunction has failed. The application for the second order sought has largely succeeded. In these circumstances it is appropriate that the parties bear their own costs of the motion.

ORDER

(1) The relief sought in the nature of an interim injunction by paragraph 1 of the plaintiff’s amended notice of motion filed on 8 February 2013 is refused.

(2) The relief sought in the nature of an order allowing the plaintiff’s lawyers access to the Manus Regional Processing Centre by paragraph 2 of the plaintiff’s amended notice of motion filed on 8 February 2013 is, in principle, granted in that it is ordered under Sections 57(1) and (3) of the Constitution that the Administrator of the Centre or whoever is lawfully in charge of the Centre shall forthwith:

(a) administer to all persons described as asylum seekers accommodated at the Centre their rights under Section 42(2) of the Constitution; and

(b) without limiting the generality of the foregoing and for the purposes of facilitating the administration of those rights the Administrator or whoever is lawfully in charge of the Centre, grant reasonable access by the plaintiff’s lawyers to the Centre so that the asylum seekers may, if they wish, communicate with those lawyers and be provided with legal advice and assistance by them and give instructions to them.

(3) The parties shall bear their own costs.

(4) Time for entry of this order is abridged to the date of settlement by the Registrar which shall take place forthwith.

Ruling accordingly.____________________________

Lawyers for the plaintiff : Henaos LawyersLawyers for the defendants : Kuman Lawyers