Opposition supports amendment to Migration Act to prevent high court potentially ruling that offshore processing of asylum seekers is unlawful

This article is more than 5 years old

This article is more than 5 years old

Labor has heavily criticised the Coalition for politicising the asylum seekers issue as it supported the government’s 11th-hour legislation to head off a high court challenge to offshore processing.

The opposition supported an amendment to the Migration Act that specifically spelled out funding for offshore processing, ahead of a high court challenge that could derail the policy altogether.

Labor has backed the government’s changes, which passed through the House of Representatives, but not without pointing out the Coalition’s past refusal to engage in bipartisanship on the matter.

The opposition leader, Bill Shorten, told parliament on Wednesday evening: “Sometimes in life the very people you attack are the very people you need to turn to.

“This is one of those times.”

“We will vote for this bill because there are some things more important than partisanship or political agendas. We will vote for this bill because we are guided by our compassion,” he said.

Shorten pointed out that the Coalition was quick to oppose the then Labor government’s Malaysian people swap deal in similar circumstances, under the threat of a high court case.

“Labor is determined to be better,” he said. “My job as opposition leader is to put the country first.”

The opposition spokesman on immigration, Richard Marles, said the government demonstrated “appalling partisan politicisation” of the asylum issue by voting down the so-called Malaysian solution.

“They seek our support and we give it even though, four years ago they turned their back on us,” he said.

Shorten said he hoped debate would shift from the “toxic, malignant, poison of Hansonism that seeps to surface of our politics”.

“That genie needs to be put back in the bottle.”

But not all Labor MPs were as supportive of the amendments or of offshore processing.

The Western Australian backbencher Melissa Parke called the treatment of asylum seekers on Nauru and Manus Island “awful, ugly [and] illegal”, and “a national shame”.

The immigration minister, Peter Dutton, said the amendments would provide the public with “greater confidence in the integrity of the regional processing framework”.

“This bill will ensure that Australia is able to continue to provide the necessary support and assistance to regional processing countries to carry out these arrangements,” Dutton said.



Just before the bill passed the House, the immigration minister rose again to specifically thank the opposition for supporting the amendments.



The measures will be introduced to the Senate on Thursday.

A high court directions hearing was held on Wednesday to ascertain the basis of the case, which claims that the government does not have the authority to detain people offshore or put money towards that goal.

The challenge, brought by the Human Rights Law Centre (HRLC), could be heard as early as September. Parliament goes into winter recess from Friday for six weeks, giving the government little time to head off the challenge by changing domestic law.



Shorten, moved a motion at the end of the caucus meeting to support government amendments to the Migration Act.

The motion said that “the caucus supports the draft amendment to the Migration Act on 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. Nor does the federal parliamentary Labor party in any way condone the manner in which the current federal government is running offshore processing”.



The case builds on a successful case mounted last year against the federal government’s funding of the school chaplaincy program. The high court unanimously found that the federal government needs parliamentary approval for expenditure on big policy areas.



The HRLC maintains that the federal government does not have expenditure and appropriation bills specific to offshore processing on Nauru.

It also claims that the government does not have jurisdiction to detain people offshore. Constitutionally, Australia has authority to lock people up onshore, and deport people. The HRLC maintains that Australia does not have specific legislative authority to lock people up in another country.

Federal governments from both sides of politics have in recent times scrambled to change domestic law relating to asylum seekers when high court cases were imminent, as evidenced earlier in the year in the case of 157 Sri Lankan asylum seekers held at sea.

Greens senator Sarah Hanson-Young said Labor should “grow a spine” when it comes to asylum seeker policy.



“Stand up when it matters,” she said. “Today, the children in Nauru need the Labor party’s help. Don’t turn your back on them, is what I put to Bill Shorten.”

The HRLC started the case in the high court in May. The director of legal advocacy, Daniel Webb, said at the time: “We know the government has powers to detain asylum seekers in Australia and also has powers to remove asylum seekers from Australia. But the question is whether the government has the authority to then lock them up indefinitely in the territories of other sovereign nations or to effectively procure that detention.”

He said the case also examines whether the $1.22bn contract awarded to Transfield Services for running offshore centres is lawful.