Offshore processing that stems the flow of asylum seekers heading to Australia may not be possible following a ruling from Australia’s High Court last week.
Australian Prime Minister Julia Gillard said legal advice from Australia’s solicitor general following the High Court ruling, had not only cut out Malaysia as a destination, but also other offshore options under consideration.
“It is far from clear, whether the court’s ruling would practically speaking permit the operation of offshore processing in other locations, even in locations where offshore processing has been conducted in the past,” the prime minister said in joint press conference with Immigration Minister Chris Bowen.
The Australian government had proposed sending 800 asylum seekers to Malaysia, a nonsignatory to U.N. protocols on refugees, in return for 4,000 processed asylum seekers.
The full bench of the High Court however declared the plan invalid last week, saying Malaysia could not fulfill security or welfare requirements under Australia’s Migration Act.
The ruling brings in to question government plans for other offshore processing centers in the Pacific.
“The solicitor-general’s advice confirms the significant doubts over whether or not the government and immigration minister could make a valid declaration for either Papua New Guinea or Nauru,” Mr. Bowen said in a statement.
The Gillard government signed a Memorandum of Understanding with the PNG government on an offshore processing facility on Manus Island in PNG last month.
Nauru had also been used for offshore processing earlier, by the previous Howard coalition government, on the grounds that Nauru was a signatory to U.N. protocols and conventions on refugees.
While the opposition rejected the Gillard government’s Malaysia deal, they have been calling for a reinstatement of the Nauru arrangement. That plan is now in question.
“These are complex issues of fact and degree requiring detailed assessment and analysis,” Solicitor-General Stephen Gageler SC said in a statement, “ Even when that assessment and analysis was complete, the issues might well be the subject of contested evidence.”
The government will now carefully consider all its options, Mr. Bowen said, adding they may amend the Migration Act.
In a rare act of bipartisan support, opposition leader Tony Abbott offered to work with the government on the issue.
Mr. Abbott says he still believes offshore processing on Nauru is an option and says he is prepared to work with the prime minister to amend the Migration Act.
“The coalition is prepared to work constructively with the government to bring that about,” Mr. Abbott told reporters. “We don’t want the government to use the High Court’s decision or the solicitor-general’s opinion as an excuse to drop offshore processing.”
The Australian Greens said they would like to see the end of offshore processing altogether and urged the government to embrace the assessment of asylum seekers’ claims on mainland Australia.
“No change to the law would be required, only a change of heart,” Greens Sen. Sarah Hanson-Young said.
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