PNG, Nauru near impossible, government says
The federal government's top legal adviser has confirmed it may be impossible to resurrect the Howard government's asylum seeker detention centres in Papua New Guinea and Nauru under current laws.
Stephen Gageler has given the government written advice confirming the High Court's decision to scuttle the controversial Malaysian people swap deal last week has far-reaching implications for all offshore processing.
Mr Gageler and two other senior counsels, Stephen Lloyd and Geoffrey Kennett, say they "do not have reasonable confidence" that the government could legally send asylum seekers to Papua New Guinea and Nauru as a result of the judgment.
The lawyers say Nauru's decision to ratify the UN Refugee Convention this year "raises the possibility" that a government could use its power to send asylum seekers to Nauru in the future but only if it could satisfy a court there were appropriate protections in place.
"These are complex issues of fact and degree requiring detailed assessment and analysis," the advice reads.
Immigration Minister Chris Bowen said the advice confirmed there were significant doubts about processing refugees in both PNG and Nauru.
"Indeed, it says the past declarations of Nauru under the Howard government would have, in all likelihood, been invalid," Mr Bowen said.
Opposition Leader Tony Abbott has repeatedly insisted Nauru is still a viable option despite the High Court's decision.
But Mr Bowen says Mr Abbott needs to consider the advice and think again.
"Mr Abbott needs to move beyond his Nauru dream world and simplistic solutions and admit that whichever way you cut it, offshore processing under the current law is no longer an easy option," Mr Bowen said.
"Quite clearly under all the legal advice, if Mr Abbott wanted to go down the Nauru option he would need legislative change. He would need it on several bases."
But the opposition maintained it was still possible to resurrect a processing centre on Nauru.
Coalition legal affairs spokesman George Brandis said the advice did not completely rule out offshore processing and accused Mr Bowen of misrepresenting the advice.
Senator Brandis said he had spoken to Nauruan Justice Minister Mathew Batsuia, who affirmed his government was prepared to enact domestic laws to ensure his country was compliant with the court's verdict.
"Given that the Nauruan government is prepared to take those steps, it now remains for the Australian government to demonstrate that it has the political will to make the Nauruan solution effective," Senator Brandis said in a statement.
Mr Bowen said the in the wake of the advice, the government would carefully consider all its options.
Amending the Migration Act was one option the government was considering, he said.
Under a deal first announced by Prime Minister Julia Gillard in May, the government had planned to send 800 asylum seekers to Malaysia in exchange for 4000 already-processed refugees.
But the High Court's full bench voted 6-1 that Mr Bowen's declaration that Malaysia was an appropriate place to send asylum seekers was not valid because the country is not legally bound to protect them.
Mr Bowen today repeatedly refused to reveal whether he considered resigning as a result of the decision, or whether he offered his resignation to Ms Gillard.
"Conversations between the prime minister and I are conversations between the prime minister and I and that's how they'll remain," he told the ABC.
"I'm not going to run away from my responsibility just because the going gets a bit tough."
Former prime minister John Howard said Ms Gillard had succeeded in "antagonising everybody" on asylum seekers.
"The real culprit though, of course, was Kevin Rudd," Mr Howard told Channel Ten.
"Kevin Rudd was the prime minister who dismantled the Howard government policy which had stopped the boats coming."