The boat stops here

Another immediate need is to reassess the processes required to expand detention and processing facilities on Manus Island. The reopening of the facilities there took a much longer time and greater resources than were first anticipated. We can expect further delays now in the light of some evidence of local resistance to a plan imposed from the central PNG government.

We also need to decide quite quickly how asylum-seekers are to be transferred from Christmas Island to Manus, whether by sea or by air and whether using an Australian carrier would have legal implications for refugee status. As the example of the Oceanic Viking showed in 2009 and similar later cases of people refusing to disembark, transporting people against their will is difficult.

In the slightly longer term we will have to review the resources required for resettlement services in PNG for successful applicants. A threshold issue is whether those services are to be provided at Australian standards and if so whether PNG citizens and residents will expect comparable services for themselves particularly in areas of health and education which the PM identified as targets for increased Australian aid.

These and other operational issues will be the subject of further submissions.

Legal:

Attorney-General's advise that the arrangement with PNG, a signatory to the UN Convention, avoids the objections the High Court made to the so- called Malaysian solution. Nonetheless we can expect numerous legal actions aimed at testing the new arrangement in principle and in practice. One likely line of argument frequently pressed by the Greens and Refugee advocates is that asylum seekers have the right to transit to other countries en route to a so called destination country such as Australia. This of course opens up the largely subjective argument about when an individual is entitled to feel safe and whether that individual is entitled to decide that for himself rather than through some objective criteria.

Further court actions can be expected in cases where Australian citizens assert a direct interest in the outcome, notably when the applicant is a close relative of the Australian resident. There is a bank of case law on this subject.

Foreign Affairs is currently reviewing Australia's obligations under the 1950 UN Convention and its 1967 protocol and the extent to which Australian courts have reinterpreted the wording in a way that increases Australia's obligations. That review may lead to further legislation.

These and other legal issues will be the subject of further submissions.

Financial:

While the PNG solution is required to be cost neutral, we need to ensure that the portfolio retains the resources necessary to continue the very large numbers of asylum seekers who are not to be resettled in PNG. The Department of Finance is already projecting the likelihood that we will need to find the savings to fund the extra aid projects the PM has promised to PNG in recognition of their assistance.

The risks involved in building infrastructure offshore are illustrated by the recent destruction of the Nauru facility at a reported cost of $60 million and the consequent imprisonment by Nauru authorities of 150 detainees.