Why Judges Should Not Make Refugee Law: Australia's Malaysia Solution and the Refugee Convention
In a 2011 decision, the High Court of Australia effectively incorporated an international treaty into a domestic statute. The case involved a refugee swap deal, called the "Malaysia Solution," between Australia and Malaysia, which the Australian government hoped would deter asylum seekers from making the dangerous overseas voyage to Australia. However, some of these asylum seekers argued that the Malaysia Solution violated the Migration Act, an Australian immigration statute. The plaintiff proposed an interpretation of the immigration statute that incorporated elements of the Convention Relating to the Status of Refugees, most notably the principle of "non-refoulement." A majority of the High Court of Australia agreed, and the future of the Malaysia Solution is now in doubt. This Comment aTgues that the Malaysia Solution does not necessarily violate the plain text of the Migration Act. By referencing unincorporated international law, the High Court of Australia decided the degree to which international norms affect domestic policymaking. Particularly in the refugee context, this judicial practice raises concerns about political accountability and democratic legitimacy. But there is a ready answer to these concerns: the Australian Parliament could revise the relevant provisions of the Migration Act to directly incorporate the Refugee Convention's precepts. More broadly, judges faced with conflicting domestic and international regimes should defer to the laws of the domestic polity and leave the work of incorporating international refugee norms to the democratically accountable branch of government-the legislature.
"Why Judges Should Not Make Refugee Law: Australia's Malaysia Solution and the Refugee Convention,"
Chicago Journal of International Law:
2, Article 16.
Available at: https://chicagounbound.uchicago.edu/cjil/vol13/iss2/16