High Court judge Kenneth Hayne today (9 August) extended the injunction until the full bench had considered the lawfulness of the Government's policy in a special sitting expected to commence the week beginning 22 August.

On Sunday night (7 August), refugee lawyer David Manne won the High Court injunction to delay the transfer of the first asylum seekers expected to leave for Malaysia at 11.30am today.

Manne said the matter was one of "life or death" as his clients (41 of the 55 asylum seekers who arrived by boat in Australia last week) feared they were being expelled to a situation where they would lack protection and face a real risk of harm.

President of the Australian Lawyers Alliance Greg Barns told Lawyers Weekly this was a "very important issue for the High Court to determine", and agreed with Manne that it "certainly is about life and death in some cases".

"This [the injunction] provides an opportunity for there to be debate and for the High Court to scrutinise the way in which the Migration Act has been utilised by successive governments since Tampa 2001 to provide for so-called offshore solutions to asylum seekers," said Barns.

Immigration minister Chris Bowen insisted yesterday that the Commonwealth Government was on very strong legal grounds on the case.

"We will vigorously argue in the full bench hearing that this agreement meets not only our domestic legal requirements, but our international obligations. This is an interim injunction, this is not a finding ... Nobody should doubt our resolve," said Bowen.

However, Barns said Australia's obligations under the Convention on the Rights of the Child had to be considered carefully in relation to whether or not sending children to Malaysia could be a breach.

Malaysia's record as a country which is not a party to human rights treaties, coupled with a lack of precedent on many of the matters to be explored in the case, present significant challenges to the Government's plan to implement the swap with Malaysia.

But Bowen said that all necessary preparation and work was continuing for the arrangement and that the Commonwealth was seeking a more urgent hearing with the ultimate aim of "breaking the business model of the people smugglers".

"We will respect the interim injunction, but we're committed to implementing the arrangement in total ... I'm not going to contemplate losing this case," he said.

Bowen said he had anticipated a legal challenge from the outset and had prepared with the Solicitor General extensively for such challenges.

Stephanie Quine