The federal opposition and Greens have combined to defeat legislation in the Australian Senate to legalise overseas processing of asylum seekers, as expected.

The Senate spent 7 hours yesterday debating Independent MP Rob Oakeshott's private member's bill, which passed the Lower House late on Wednesday night.

The Migration Legislation Amendment (The Bali Process) Bill 2012 would allow the Government to implement its people-swap deal with Malaysia and permit the reopening of a detention centre on Nauru.

It was defeated 39 votes to 29, as Greens Lower House MP Adam Bandt watched on.


A Greens amendment to increase Australia's humanitarian intake from 13,750 to 20,000 and increase funding to the United Nations High Commission for Refugees to bolster processing in Indonesia and Malaysia was also defeated.

Before the vote, Labor's leader in the Senate, Chris Evans, took a final swipe at opposition and Greens senators, after Prime Minister Julia Gillard earlier in the day called for the Senate to pass the bill.

"Where were you when you had the opportunity to do something?" Evans said.

Gillard had urged senators to pass the law before Parliament adjourns for six weeks. "Either they vote for this bill and we will leave this Parliament with laws so we can process people offshore or they continue to play politics and we end this Parliament with nothing effective done.

"We cannot just sit in this Parliament and watch boats capsize and people drown and do nothing."

Seven boats carrying 656 asylum-seekers and crew have been intercepted off Christmas Island in eight days, according to Department of Immigration and Citizenship figures.

The island's five detention centres are now at "surge capacity", with 1218 "irregular maritime arrivals", as they are officially termed, housed as of yesterday afternoon.

The figure does not include an estimated 230 people rescued on Wednesday from two boats - including one that sank north of Christmas Island - who began arriving on the island yesterday.


Christmas Island, which is about 1600km off Western Australia's northwest coast, can normally house 950 detainees.

However, it has a temporary surge capacity of 2008.

Foreign Minister Bob Carr told the Senate the number of boat arrivals slowed from May last year, when the Malaysian deal was announced, but then tripled after the Government gave up trying to get enabling legislation through Parliament in October last year.

"We can break the business model of the people smugglers and we have a duty to do so," Carr told the Senate. "The absence of a clear decision is seen as an open door to Australia."

Carr took a swipe at the High Court, saying its decision to scuttle the Malaysia people-swap deal was one of the most questionable and curious in memory. Boat arrivals had tripled from 313 in October to 895 in November after the court's ruling last August, he said.