Australia's High Court has blocked the Government's controversial refugee swap deal with Malaysia for two weeks pending a full-bench hearing of an appeal by asylum seekers who were to have been flown from detention on Christmas Island yesterday morning.
Justice Ken Hayne extended an interim injunction because of doubts about Malaysia's ability to uphold the asylum seekers' human rights, and because the country is not a signatory to the United Nations refugee convention. The last-minute injunction to prevent any departures yesterday was granted on Sunday afternoon.
Despite Government claims that it has the power to make the agreement, Hayne said there were "serious questions to be asked and answered" about the deal and that the injunction would be extended to allow the full bench to consider the legality of the policy in a special sitting.
The decision is a major blow to the Government, whose continued failure to find a solution to the continuing arrival of boats from Indonesia is one of the most inflammatory of a cluster of thorns piercing Prime Minister Julia Gillard's fragile minority Administration.
Gillard said the option of a new facility in Papua New Guinea remained open. She turned to PNG after earlier proposals for one in East Timor collapsed.
Gillard said that although negotiations had been interrupted by a political crisis in PNG, Australia would continue its discussions, but she declined to comment further or to place any deadline on the talks.
The decision also came as a group of recently arrived asylum seekers on Christmas Island continued a hunger strike to protest at their impending move to Malaysia, with reports of self-inflicted harm by others. The group was among 55 whose arrival after the controversial refugee-swap was signed placed them among the first of more than 100 now subject to deportation.
Under the deal, 800 asylum seekers will be sent from Australia in exchange for 4000 officially recognised refugees held in Malaysia. The group includes five children with parents or older relatives, and 14 unaccompanied children, whose likely removal to Malaysia has outraged refugee and human rights advocates.
On Sunday, as lawyer and Refugee Immigration Legal Service director David Manne won a stay of yesterday's planned deportation of 16 single men, the navy intercepted another boat carrying 50 passengers, including four unaccompanied children. The inclusion of children in the deal - seen by the Government as an added warning to people smugglers - has been condemned by critics and Unicef. The Government haspromised only consideration on a case-by-case basis - and warned that the deportation of children would be filmed and posted on YouTube as a deterrent to refugees.
Manne argued that children were guaranteed protection under international obligations that made Immigration Minister Chris Bowen their legal guardian, and questioned Malaysian human rights record towards refugees.
After Sunday's interim injunction, Manne said that a number of his clients held strong fears for their safety in Malaysia.
"Malaysia has a long-standing record of very serious mistreatment of asylum-seekers and refugees including, as we know, arbitrary arrest, arbitrary detention, beatings, whippings, canings and even deportation."
The Opposition has continued its attack on the Government.
"The Malaysia deal is not a solution," said Nationals leader Warren Truss. "It's a mess, a horrible, unnecessary mess."