PNG Solution faces constitutional challenge

THE High Court battle over the federal government's asylum-seeker deal with Papua New Guinea has escalated to the level of a constitutional challenge, potentially curtailing any future government's plans to restore offshore processing.
Lawyers for a 27-year-old plaintiff, an Iranian detainee referred to in court documents by the pseudonym S156, yesterday filed an amended statement of claim arguing the government had no constitutional authority to designate another nation, such as Papua New Guinea, as an "offshore processing country".
They will also argue that immigration minister failed to consider Australia's obligations under numerous international treaties when deciding to declare Papua New Guinea an offshore processing country. Those treaties include the Refugees Convention and the Convention Against Torture.
The detainee's Sydney solicitor, Adrian Joel, said a favourable judgment would raise "constitutional issues as to the validity of the entire system" of offshore processing. "It just means there's no power at all and the whole system collapses. The whole program would cease," Mr Joel said.
Attorney-General Mark Dreyfus said last week: "The government is very confident in the legal basis for its transfers to Papua New Guinea. It will vigorously defend any challenge to the regional processing arrangements with Papua New Guinea."
Mr Joel's client is not seeking an injunction to stop the PNG policy while the High Court weighs its decision.
University of NSW constitutional law expert George Williams said last night the constitutional challenge had "limited prospects of success".
"This amounts to a full-frontal assault on the ability to have offshore processing," Professor Williams said. "The High Court has previously said the commonwealth has a broad power over aliens and immigration, and a broad power to legislate for external affairs.
"The court said the commonwealth's power is to be read broadly and indeed, when it comes to the treatment of aliens, it's possible for that to extend to matters beyond what could be done to citizens."
Professor Williams said the lawyers had a better chance of success with their argument that the minister acted unreasonably in designating PNG as a regional processing country.
He said the law was drafted after the High Court struck down Labor's Malaysia people-swap arrangement and was aimed specifically "to insulate the government from attack in court".
"The Migration Act says . . . the minister can designate any country he or she wants (as a regional processing country) so long as he thinks it's in the public interest to do so," he said.