Insights

Manus Detainees Win Procedural Battle in PNG Damages Claim

The now famous refugee journalist, Behrouz Boochani, heads up a claim by 731 asylum seekers on Manus Island for damages for breach of constitutional rights.

Procedural matters play a significant role in most litigation. The same is true of Mr. Boochani’s litigation.
The State of PNG brought an application for the Court to dismiss Mr. Boochani’s action for being outside a time limit to commence proceedings within 6 months of the alleged breach giving rise to the claim.

The proceedings were commenced on 4 November 2016. The State argued that the unlawful detention by the State had ceased on 27 April 2016, the date that the Supreme Court decision which, in earlier litigation, declared that detention on Manus Island unconstitutional and illegal was communicated to the detainees.

The State relied on the availability of a bus service travelling to and from Lorengau as evidence that detention had ended. The claimants relied on various circumstances that included the gates of the detention centre were still locked; travel on the bus were hedged around with the need for permits and other restrictions; and a prohibition of leaving the detention centre on foot or, otherwise, than by the bus service.

The gates were eventually unlocked on 12 May 2016. The Supreme Court held unanimously that the restrictions on the refugees’ constitutional rights continued until 12 May 2016. Therefore, the proceedings were within time when they were commenced on 4 November 2016, within the six months limit which would have expired on 12 November 2016.

The application to dismiss the proceedings was dismissed by the Court. The claim for damages for unlawful detention will continue.

Stephen Keim SC
Higgins Chambers
19 December 2017