The decision by a WA MP to vote against proposed changes to the Migration Act leaves the Government with no choice but to consider onshore processing, according to a refugee law expert.
Dr Angus Francis of the Queensland University of Technology told Lawyers Weekly that Nationals MP Tony Crook's decision to vote down the Government's proposed amendments means they will be left with very few options.
"Unless they can get Opposition support - which seems unlikely - the Malaysia deal, for now, is not an option," he said.
"Based on the High Court's decision in M70, and also the Solicitor-General's advice to the Government in September that Nauru, Papua New Guinea and Manus Island are also not on the table, that then leaves onshore processing as the only option."
According to The Australian, Crook's decision means Cabinet will now consider retracting the Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011, which was constructed with the intention of circumventing the High Court's decision declaring the Malaysian asylum seeker swap deal invalid, or risk suffering a parliamentary defeat.
If the latter option is taken, Gillard would potentially be the first Prime Minister in 80 years to lose a vote on legislation in the House of Representatives.
According to Francis, the Gillard Government should have allowed the High Court's decision to guide their policy decisions, instead of leading them to attempt to bypass it.
"When the High Court declared the Malaysia deal invalid, [the Government] should have taken the opportunity to go back to onshore processing," he said.
"[The criteria in the Migration Act] are objective criteria. They are not simply things that the Government can ignore. That means they have very few options now other than to turn to onshore processing. There are not many countries in this region, if any - aside from Australia and New Zealand - which have a proper respect for and adherence to the Refugee Convention."
Crook cited humanitarian grounds when revealing he would not support Gillard's amendments to the Act, even though he supports the Opposition's proposal to allow offshore processing in countries party to the Refugee Convention.
However, Francis said this is also not a realistic option.
"I don't think the Opposition fully appreciates the High Court's decision," he said. "They have their heads in the sand. Nauru and Manus Island, according to the Solicitor-General's advice in September, did not satisfy the criteria in s.198A of the Migration Act, and do not look like satisfying that criteria any time soon.
"Even if the Opposition were to win power, they would have to amend the Act, so I don't think either party should be crowing about the current situation. What they need to do is sit down and think afresh on the whole issue."