A top public servant has apologised for a “regrettable” and “significant” lapse that meant Nauru was not approved for Australia’s offshore immigration processing for a period of four months.
The home affairs secretary, Michael Pezzullo, on Monday revealed that the department was aware as far back as January 2021 that the designation allowing offshore processing at Nauru would need to be renewed, but failed to alert the home affairs minister, Claire O’Neil. This was despite O’Neil asking on “at least seven” occasions if legal requirements for Operation Sovereign Borders were in place.
The evidence to Senate estimates blunts the Coalition’s attack on Labor over the issue as it also seeks to weaponise the abolition of temporary protection visas (TPVs) against the Albanese government. The Coalition has said the government’s failure to renew the designation of Nauru when it lapsed in October shows Labor is soft on borders.
Meanwhile, refugee advocates and crossbench MPs praised Labor’s intervention to give permanent residency to 19,000 holders of TPVs. But advocates are now asking the government to help a further 12,000 people “in limbo”, including 2,500 who will have to make fresh applications to the immigration minister to stay in Australia.
In estimates the Greens and the Coalition pursued the Albanese government over the possible legal consequences of the designation of Nauru for offshore processing and its four-month lapse before it was reauthorised on 7 February by parliament.
Pezzullo on Monday conceded the lapse “should not have occurred”, blaming a combination of “human and administrative error within the department”.
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He tabled a document revealing “several” instances when the department was warned by external agencies or made aware through internal processes that the Nauru instrument would sunset, dating back to January 2021 when the Office of Parliamentary Counsel sent a list of regulations due to expire.
Senator Murray Watt, representing the home affairs minister, said the Coalition had shown “all sorts of outrage” that Labor had let the instrument lapse, but the administrative oversight began under then home affairs minister, Peter Dutton, and later Karen Andrews. Liberal senator Paul Scarr labelled this a “very neat deflection”.
“We messed up on this occasion,” Pezzullo said. “That’s not to say Ms Andrews or Mr Dutton should’ve asked [about the expiry] … any minister is entitled to rely on the acumen of their department.”
Pezzullo revealed O’Neil had sought assurances since June 2022 “at least seven times” that “all administrative requirements to support Operation Sovereign Borders were in place” and that the immigration minister, Andrew Giles, had also separately “sought advice of instruments sunsetting or expiring”.
“The sunsetting of this instrument was not identified by the department in any of those processes.”
Pezzullo assured the Greens senator Nick McKim there were “sufficient alternative legal authorities” to keep people on Nauru, or send them there if needed and to keep them in detention in Australia if they returned.
But Pezzullo refused to identify the source of this authority, taking questions on notice to ask the minister if she wished to make a public interest immunity claim, in effect blocking the questions because they could reveal the content of the government’s legal advice.
Watt noted that the three key elements of Operation Sovereign Borders – offshore detection, interception, and regional processing “remain in force”.
In question time, the opposition leader, Peter Dutton, targeted Labor by asking whether allowing people on TPVs to stay could result in an increase in arrivals.
“Changes to any single element of OSB, without effective mitigation, may result in a weakening of the overall denial and deterrence effects delivered by the operation as a whole.”
Earlier, Andrews, now the shadow minister, had warned that Labor’s policy could trigger an “armada” of boat arrivals.
The prime minister, Anthony Albanese, responded to Dutton that Labor would be “tough on borders without being weak on humanity”.
“I can guarantee that we will implement the precise policy which we took to the election,” the prime minister said.
Independent MP Allegra Spender noted a further 12,000 asylum seekers have not been guaranteed to stay in Australia, including some whose claims were assessed by the “failed fast track” assessment program, which Labor has promised to abolish.
Guardian Australia understands that 2,500 people whose claims have been finalised and who have exhausted review processes will be required to reapply for protection, seeking ministerial intervention on the basis of “genuine and compelling claims” their cases did not get a fair hearing.
Giles said that the 19,000 who will be moved off TPVs “arrived long before” Operation Sovereign Borders, rejecting the Coalition’s suggestion that this could provide an incentive for more boat arrivals.
In response to Spender, Giles said the government’s policy “contemplates the circumstances of all people in this cohort”, meaning that the further 12,000 would also gain a pathway to permanency, if not a guarantee of it.
Those “who are ultimately found to have been owed protection should be able to access this pathway”, he said.
‘Compassionate’ move welcomed but concern for those ‘in limbo’
The executive director of Refugee Legal, David Manne, said the government’s decision would be “transformative”.
“It is common sense, it is humane, and it is the right thing to do,” Manne said.
“This will change thousands of people’s lives for the better.
“This will enable people who are here with us, who have been found to need protection, who it is clear cannot go back, to build their lives in Australia with a true sense of certainty and belonging.”
Independent MP Andrew Wilkie welcomed the government’s “long overdue” announcement as a “compassionate approach” but said he would continue to lobby for those still in limbo.
Ian Rintoul, spokesperson for the Refugee Action Coalition, said that “contradictions in Labor’s policies must be urgently addressed”, arguing it makes “no sense for Labor to leave the thousands of others – asylum seekers rejected by fast track, and the refugees from Nauru in and PNG, in limbo, but they have”.
“Labor’s piecemeal approach will only add to the distress of some refugees on TPVs. While they get a permanent visa, their partners and other family members who are ‘transitory persons’ from offshore, are being told they will never get permanent residency.”
