ABC
September 1, 2011, 5:27 am
.All options on the table
With the Malaysian solution rejected, Labor is now forced to contemplate other options they've been ridiculing for years.
The Federal Government is still reeling from yesterday's historic High Court ruling which effectively declared the Malaysia refugee swap deal invalid.
Immigration Minister Chris Bowen said all options were on the table yesterday as the Government contemplated the possible wreck of its offshore processing strategy.
In a 6-1 decision yesterday, the court said Malaysia did not have laws in place to ensure the safety of asylum seekers.
The court said the Minister had no power under the Migration Act to remove asylum seekers from Australia if their claims for protection had not been determined.
Cabinet will now be forced to contemplate two things Labor has ridiculed for years: the re-opening of a detention facility on Nauru, and the return of Temporary Protection Visas.
Last night, the Government would not rule them in or out, and Prime Minister Julia Gillard did not have much to say about the High Court ruling.
"We are going to study this High Court decision, but nothing in it is going to diminish our resolve to break the people smugglers' business model. We will study the decision though," she said.
Adding to the Government's problems, the Greens say they will block any attempt to change the Migration Act in a bid to try and resurrect the Malaysian Solution.
Mr Bowen has also said Australia will not ask Malaysia to change its laws to bring it into line with United Nations rules on the treatment of refugees.
The four-year asylum swap deal, in which Malaysia would take 800 asylum seekers from Christmas Island in return for Australia accepting 4,000 refugees from Malaysia, was signed more than a month ago but almost immediately challenged by human rights lawyers.
Since then a temporary injunction had put the transfer of asylum seekers on hold, and yesterday the High Court declared that injunction permanent.
Cabinet will also consider what will be done with the 335 asylum seekers on Christmas Island who had been scheduled to be flown to Malaysia.
From next week, the Immigration Department says children in the group will start school.
And Mr Bowen has admitted Australia will probably have to accept the 4,000 genuine refugees from Malaysia who were covered by the deal.
"My position is that the arrangement with Malaysia was entered into [in] good faith by Australia and Malaysia," he said.
"We said we'd take those 4,000, therefore I would be inclined to continue to take the 4,000.
"The Government will consider the intake, because very clearly we wanted to increase the intake, we wanted to take more refugees, but we wanted to do so as we broke the people smuggler's business model through this arrangement."
Immigration authorities are still working out how they will respond to the High Court decision, and what it means for the hundreds of asylum seekers on Christmas Island.
Clapping and cheering could be heard from the Phosphate Hill Detention Centre yesterday as the High Court handed down its decision.
In a statement the Department of Immigration said it would not speculate on its next step until it had considered the implications of the decision.
'Profoundly disappointing'
Yesterday, Mr Bowen described the court's decision as "profoundly disappointing" and said the High Court "applied a new test" to protecting asylum seekers during offshore processing.
"What the High Court has decided today is not what was previously considered as understood and accepted law," Mr Bowen told reporters in Canberra.
He said the decision had ramifications not only for the Malaysian deal but for offshore processing generally, and was likely to encourage people smugglers to ramp up their trade.
Describing his portfolio as "the hardest job I've ever done", Mr Bowen said he was determined to see the asylum seeker issue through and maintained the legal advice the Government had received "was very solid".
The lawyer behind the legal challenge, David Manne, says his clients are very relieved.
"These people came here in fear for their lives and were very fearful of being sent to Malaysia. They feared they would be harmed," Mr Manne said.
"The court has now ruled it would be unlawful to expel them to that type of situation."
Opposition immigration spokesman Scott Morrison described the judgment as "another policy failure by an incompetent government", while Greens Senator Sarah Hanson-Young said the decision vindicated her party's position on the deal.
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