Federal Government scrambles to close loophole making offshore immigration detention 'illegal'

Updated

The Federal Government has introduced emergency legislation to Parliament to safeguard its offshore detention network.

Late last night the Government called upon the Opposition to support emergency legislation to close a loophole that could see the whole offshore system declared illegal by the High Court.

It is understood Prime Minister Tony Abbott told Opposition Leader Bill Shorten the system — which includes processing centres on Nauru and Manus Island in Papua New Guinea — could be deemed illegal during the six-week winter break unless the loophole was closed.

Immigration Minister Peter Dutton told Parliament today the bill gave the Government the legal authority to process asylum seekers in other countries and to fund the processing arrangements.

"The Government does not want the sustainability of regional processing weakened," Mr Dutton said.

"This is achieved by providing clear and express statutory authority for the Commonwealth to provide assistance to other countries to carry into effect the arrangements for the processing and management of unauthorised maritime arrivals who have been taken to regional processing centres.

"This also extends to the expenditure of Commonwealth money on these arrangements."

He said the amendment dealt solely with enabling payments and enabling the fact of regional processing.

Labor supported the legislation, after a special caucus meeting today.

"The basis that the legislation solely goes to enabling payments, enabling the fact of regional offshore processing and that the legislation does not change or in any way expand the current situation/policies/extent of regional offshore processing," a motion moved by Mr Shorten read.

Mr Shorten has warned the Government Labor was not happy with the late notice, and told the Coalition to remember their support when attacking them during Question Time.

"Labor has been promised that this amendment is not empowering new conduct, and that nothing here is the basis for new action," Mr Shorten said.

"We should record that we were underwhelmed with this request for urgent action at one minute before midnight.

"When you needed us in the national interest, we're there, and when you feel like taking a shot at us to pull some lever, to push some focus message, to bring out the lesser angels of the Australian nature, all I say to you is remember this moment, because every person over our side will.

"I have asked the Labor party to take the Government on trust on this matter, and we know trust is in short supply."

Lawyers believe legal challenge behind Government's urgency

Ten asylum seekers earlier this year launched a challenge about the legality of the Government's offshore detention system, which lawyers believe is behind the Government's action over the past 24 hours.

Lawyers said because the Government had issued the contracts for the establishment and maintenance of the processing facilities, they were Australia's responsibility, not that of Nauru and PNG.

They also argued that necessary laws had not been passed to authorise the facilities.

A procedural hearing for the case was held in Melbourne today and a further directions hearing is scheduled for Friday.

Last year a High Court decision ruled, with limited exception, the Government needed legislative authority to spend public money on big policy issues.

"The case had a directions hearing this morning and the next thing we hear is that the Government's moving to change the law so they don't have to face the music in the High Court," Greens Senator Sarah Hanson-Young said.

"For the last three years this Government and the previous government illegally detailed children and families on Nauru and Manus Island.

"Labor has got to grow a spine — stand up when it matters."

Brandis denies claims offshore detention had been illegal

Attorney-General George Brandis denied the Greens' claim that the urgent bill meant offshore detention had been illegal.

"No, that's incorrect ... the Government is of the view that the offshore processing arrangements are lawful," Senator Brandis said.

"The legal advice to the Government and to the previous Labor government was that the scheme was within the law."

Daniel Webb from the Human Rights Law Centre said a government confident its actions were lawful, "doesn't suddenly change the law when its actions are challenged in court".

"People affected by this case include newborn babies, people with serious medical issues and women who report being sexually assaulted on Nauru," Mr Webb said in a statement.

"They deserve to have the lawfulness of their treatment considered by our courts, not have the Government shift the goalposts mid-case."

The Nauru and Manus Island centres were opened under the Howard government, before being closed and reopened under the previous Labor government.

Topics: government-and-politics, federal-government, immigration, australia

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