The federal government's top legal adviser has told Australia's Human Rights Commissioner Gillian Triggs that she cannot visit Nauru and Manus Island to assess and act on complaints from asylum seekers about conditions on the islands.
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This is despite the centres being set up with Australian money, and at Australia's behest.
Legal advice from the Solicitor-General, sent to Professor Triggs' office late last week, argued she did not have the jurisdictional power to hear on Manus and Nauru the complaints of people kept in offshore processing centres.
She could still hear and consider complaints from Australia, but would be unable to verify conditions first-hand. ''The power to inquire into these complaints may only be exercised in Australia, that is by actions taken by the [Human Rights Commission] President in Australia,'' she said in a statement.
Late on Monday, Professor Triggs' office said that it was still seeking further information about the implications of the legal advice.
Asylum seekers on Nauru and Papua New Guinea's Manus Island have sent complaints about their treatment to Professor Triggs' office.
An immigration department spokesman said the Attorney-General's department had contacted the Solicitor-General's office to seek legal advice about the matter, and it was considering that advice. A spokeswoman for the Attorney-General said the government had not given any direction to Professor Triggs, but said she had made a decision based on legal advice.
The UN High Commissioner for Refugees has released scathing reports about the conditions on both island processing centres, describing them as troubling and deeply concerning.
Professor Triggs, who first flagged her intention to visit Nauru in October, was told she would have to get legal advice about whether she had jurisdiction to hear the complaints at Nauru's processing centre.
But the initial legal advice given to Professor Triggs' office states she has jurisdiction only over people on Australian soil, including asylum seekers in mainland detention centres and on Christmas Island, an Australian territory.
Human rights lawyer David Manne said, ''A government confident that transfer arrangements were guarding people from further abuse of their human rights would welcome, not seek to stymie, such scrutiny.''
Australian Lawyers' Alliance spokesman and refugee law barrister Greg Barns said the advice raised serious questions about Australia's accountability to asylum seeker conventions. He also questioned the veracity of the advice. ''At the end of the day they are Australian facilities … established by the Australian government [and] they are effectively paid for by the Australian government.
''So I think that advice ought to be examined very carefully, and may represent a very narrow, black-letter view of the law.''
