Aslyum Lawyer David Manne keeps a vigliant eye on Gillard's aslyum manouvers.

Lawyer ready for migration scrap

• Lauren Wilson
• From: The Australian
• September 07, 2011 12:00AM

THE refugee lawyer behind the High Court's scuttling of the Malaysia Solution will not rule out taking the Gillard government back to court if it works with the opposition to amend the Migration Act to enable asylum-seekers to be processed offshore.

David Manne, the executive director of Melbourne's Refugee and Immigration Legal Centre, told The Australian yesterday that it would be "business as usual" for him if Julia Gillard again sought to legislate around the High Court ruling and revive the Malaysia Solution.

"If there was a proposition to expel someone to another country, it would be business as usual," Mr Manne said. "If we receive a distress call and that person wanted to challenge their expulsion and we thought there was a case in the court, we wouldn't rule out a legal challenge."

But Mr Manne said he hoped the whole parliament would seize the opportunity and get on with processing asylum-seekers onshore rather than "seeking to circumvent the ruling or come up with new laws".

Refugee lawyer Julian Burnside QC said the Gillard government would be hard pressed to change the law to enable offshore processing in any way that did not fall foul of Australia's obligations as a signatory to the UN refugees convention.

"The High Court has ruled we are bound -- our protection obligations are defined by the obligations under the convention," Mr Burnside said.

Mr Burnside said the Gillard government could not reduce its obligations under international law, short of withdrawing from the convention. But he said: "Let's be clear, that would be their purpose in amending the act."

Adelaide University migration law expert Alex Reilly said the Gillard government could easily amend the Migration Act in a way that would protect it from another High Court challenge.

Associate Professor Reilly said the government could amend the relevant section of the Migration Act and insert a "much lower threshold" for determining whether a country was an acceptable place to send asylum-seekers for processing. But he said that in doing so, "you could no longer pretend you are satisfying your own obligations under the United Nations".

Professor of International Law at Australian National University Donald Rothwell agreed the Migration Act could "fairly simply" be amended to send asylum-seekers whose claims had not been processed in Australia offshore for processing.

But he said a "much more difficult issue" would be amending the law to overcome the Immigration Minister's guardianship responsibilities to unaccompanied minors."I fail to see how the government could seek to fire-proof any amendments to this act from potential legal challenge with respect to unaccompanied minors," Professor Rothwell said.

A spokesman for the UN High Commissioner for Refugees would not comment last night on whether it would endorse any move by the Gillard government to amend the Migration Act.

In an earlier statement in the wake of the High Court judgment, a spokesman for the UNHCR said: "What is important is that fundamental refugee protection and human rights principles must be integral to any arrangements dealing with asylum-seekers and refugees in the region."

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