To settle the uncertainty, the full court of the Federal Court will now hold a special hearing to clarify whether the court has the power to commence hearing such matters.
If the government’s argument is successful, future cases may need to be filed in the High Court, which could then make its own ruling or revert back to the lower court.
However, refugee advocates fear this could result in unwanted delays and bureaucratic hoops – the very kind that would make it harder for dangerously ill children to receive the emergency treatment they need.
There are also only seven judges in the High Court, compared with 48 Federal Court judges, dealing with what Border Force now admits is an “unprecedented jump” in refugee and asylum-seeker medical cases.
In recent times, there have been at least 50 urgent cases concerning the movement of off-shore refugees on medical grounds.
The government’s decision to question the Federal Court’s jurisdiction caught some legal experts by surprise this week, given both major parties are trying to tackle the longstanding stalemate over asylum seekers by considering settling them in New Zealand.
“In years of these sort of cases, that argument has never been put,” a migration law expert told Fairfax Media.
However, a Home Affairs Department spokeswoman said the Commonwealth “was obliged to raise the matter once it became aware of the jurisdictional issue”. Furthermore, she said, “the hearing has not had any impact on the transfer of applicants for medical treatment.
“The applicant in this matter has already been transferred, as have other applicants since the jurisdictional issue arose,” the spokeswoman said.
“Until the jurisdictional issue is resolved, all relevant matters will be dealt with in the same way as they have been to date.”
The legal uncertainty emerged after government officials revealed that 11 children had been flown from Nauru to Australia on Monday night for urgent medical treatment, leaving 52 asylum-seeker children on the island.
“We’ve been acting on these issues,” Mr Morrison said earlier this month. “We haven’t been doing it by making public statements about it every day, but we always consider each and every case on its merits and in the interests of the child, and we will continue to do that.”
Mr Morrison is facing public and internal pressure over Nauru, leading him to suggest the asylum seekers could be settled in New Zealand if Parliament passed a law to prevent them travelling on to Australia.
In a dramatic move that could speed up the process, Opposition Leader Bill Shorten also obtained shadow cabinet approval on Monday to help pass the law and ensure the children were transferred more swiftly.
John Silvester is a Walkley-award winning crime writer and columnist. A co-author of the best-selling books that formed the basis of the hit Australian TV series Underbelly, Silvester is also a regular guest on 3AW with his “Sly of the Underworld” segment.
Farrah Tomazin is an Investigative Reporter for The Age, with interests in politics, social justice, and legal affairs.