Not for export : the failure of Australia's extraterritorial processing regime in Papua New Guinea and the decision of the PNG Supreme Court in Namah (2016)

The so-called 'Pacific Solution' operated by successive Australian governments to deal with refugee boat arrivals has been the subject of domestic and international criticism.3 It is, however, now an arrangement which certain other countries are looking to as a possible model to emulate.4 The Pacific Solution has been problematic for some time due to the nature of the agreements Australia has finalised with third countries. Australia has attempted to establish a form of 'regional processing' in the Asia-Pacific via bilateral agreements with two key developing nations in the region: Nauru and Papua New Guinea ('PNG'). However, the viability of a key component of this legal regime has been called into question by the 2016 decision of the PNG Supreme Court in Namah v Pato ('Namah').5 The Court, in a unanimous decision of five judges, held that detention of refugees and asylum seekers in the Australian-funded centres in that country was unconstitutional under the right to liberty set out in the PNG Constitution.6 The Court ordered, inter alia, that both the Australian and PNG governments 'take all steps necessary to cease and prevent the continued unconstitutional and illegal detention of the asylum seekers or transferees "¦ on Manus Island'.