The head of the Department of Home Affairs says it was to blame for a lapse in Australia's offshore asylum seeker processing policy, despite assuring multiple government ministers the legal instruments needed were in place.
Department secretary Mike Pezzullo told Senate estimates "human error" and a failure to adequately monitor what is known as the "Instrument of Designation" was behind the blunder.
The instrument is a key part of Operation Sovereign Borders and is used by the government to send asylum seekers to Nauru.
But when it was first approved by parliament in 2012 it had a 10-year "sunset clause", meaning it needed to be renewed on October 1 last year to remain effective.
That date was missed and Home Affairs Minister Clare O'Neil was not told about it until mid-December 2022, after parliament had risen for the year.
Last week the government rushed through a renewed instrument of designation to remedy the situation.
Mr Pezzullo said that since January 2021 his department had received multiple warnings that the instrument would expire in October 2022.
"However it failed to adequately monitor, track and report on the instrument that designated Nauru as a regional processing country," he said.
"Furthermore from June 2022 the minister sought and was provided assurances that all administrative requirements to support Operation Sovereign Borders were in place, including relevant legislative instruments, this occurred on at least seven occasions.
"Separately the minister for immigration [Andrew Giles] … also sought advice on instruments sunsetting or expiring prior to this instrument expiring.
"The sunsetting of this instrument was not identified by the department in any of those processes."
'We messed up'
Mr Pezzullo denied that the previous government or previous home affairs minister Karen Andrews should have been aware of the impending end of the instrument.
"We messed up on this occasion," he said.
"Any minister is entitled to rely upon the administrative acumen and efficiency and effectiveness of their department."
Mr Pezzullo said the department had reviewed what went wrong and enacted a range of new processes and oversight to ensure it did not happen again.
He also told senators he had apologised to both Ms O'Neil and Mr Giles.
"I take this opportunity to apologise in public, to apologise to the government, it should not have occurred," Mr Pezzullo said.
Senate estimates also heard the department had sought legal advice about whether it was unlawful to detain people on Nauru during the period when the instrument had lapsed.
Mr Pezzullo said the advice was it was not unlawful, and there was "sufficient legislation authority" in other aspects of legislation to make sure operations offshore were still carried out.
He said the usual notification processes had failed in this instance and that "all the checks and balances that would ordinarily be in place" had failed.
