Coalition scrambles to close immigration detention loophole

The Coalition wins Labor’s backing for an urgent bill to fix a loophole exposing its detention network to legal challenge.

Nauru’s detention centre being constructed. Picture: Deidenang Clint

Immigration Minister Peter Dutton has received Labor backing for an urgent bill to put beyond doubt the authority to enter offshore processing agreements with other countries.

The Australian Greens and human rights lawyers say the government is trying to circumvent a future decision of the High Court to do with a challenge over the way taxpayer funding has been appropriated for the Nauru detention centre.

Mr Dutton told parliament the bill doesn’t change or expand regional processing, but merely gives “clear express statutory authority” for the government to provide assistance to other countries.

“Regional processing helps combat people smuggling,” Mr Dutton said.

“It is an important solution for maintaining Australia’s strong border protection policies.” Opposition Leader Bill Shorten told parliament Labor objected to having to deal with the legislation after only considering it for the first time today.

But it would support the laws because regional processing was Labor policy.

“We come to this decision ... guided by our compassion,” Mr Shorten said.

“Our compassion demands we prevent drowning at sea, just as our compassion demands the humane treatment of all those in our care.”

Mr Shorten said Labor did not believe the government was running offshore detention in a way the Australian public wanted it to. “They are not illegals and fleeing persecution is never a crime,” Mr Shorten said.

“There is no place for violent, inhumane or degrading treatment.”

The Labor caucus held a special meeting earlier today to sign off on the bill.

The caucus motion said its decision did not mean Labor condoned the manner in which the government was running offshore processing. The Human Rights Law Centre, which is bringing the High Court action, said the laws contradicted the government’s claim that its actions running and funding offshore detention centres are legal. “A government confident its actions are lawful doesn’t suddenly change the law when its actions are challenged in court,” said HRLC director of legal advocacy, Daniel Webb.

The case began on May 14 on behalf of a group of asylum seekers and their families, but a hearing date has not been set.

Mr Webb said newborn babies, people with serious medical issues and women who have reported being sexually assaulted on Nauru deserved to have the lawfulness of their treatment considered by the courts.

Tony Abbott called Mr Shorten earlier today amid fears that Labor’s 2012 legislation could be at risk following a High Court case on the contentious school chaplaincy scheme brought by Ron Williams.

That case found there had to be a specific statutory authority and legislation underpinning the ability of the federal government to spend money.

The legal effect of the High Court case in the Williams matter was that payments from the commonwealth to another entity needed to be supported by a head of power under section 51 or 52 of the constitution.

Professor Anne Twomey from the University of Sydney says: “Up until Williams they (the commonwealth) had assumed in terms of spending money that they could spend it on anything they thought was a commonwealth purpose. The Williams case said ‘no, you need to have a head of power and legislate to support your expenditure. So they have to find something in the constitution that gives it power to legislate to authorise the expenditure.”

Professor Twomey noted that section 51 (xxix) of the constitution — the external affairs power — provided the power for the government to give money to other countries.

The value of asset management firm Transfield Services’ immigration contracts are worth about $2.1 billion with the company providing garrison and welfare services at the processing centres on Nauru and Manus Island in Papua New Guinea.

Transfield has sub-contracted security services to Wilson Security.

Manager of Opposition Business Tony Burke confirmed that Labor had agreed to back the amendments to preserve the integrity of offshore processing.

The recommendation to support the legislation was moved by the Opposition Leader and seconded by opposition immigration spokesman Richard Marles at the special caucus meeting.

The motion confirmed that caucus supported the draft amendment to the migration act on the basis that “the legislation solely goes to enabling payments” and securing the continuation of regional offshore processing.

“The legislation does not change or in any way expand the current situation/policies/extent of regional offshore processing,” the motion said.

“Nor does the Federal Parliamentary Labor Party in any way condone the manner in which the current Federal governing is running offshore processing”.

There was no ballot with the motion being carried on the voices.

The Refugee Action Coalition had called on the Labor Party not to support the amendments saying the issue of offshore processing should be “vigorously debated” at the national conference next month.

“Any support for the Coalition in the present circumstances would not only pre-empt Labor conference discussion, and possible rejection of offshore processing; it would be regarded as explicit support for the corrupt detention system,” said Refugee Action Coalition spokesman Ian Rintoul.