The Implications of the Failed 'Malaysian Solution': The Australian High Court and Refugee Responsibility Sharing at International Law

Article excerpt

The notion that international cooperation is required in order to adequately respond to the challenge of refugee protection is a well established and accepted concept, yet in recent decades many states' attempts to engage in responsibility sharing regimes have tended to undermine rather than expand refugee protection. Against this background, the attempt by Australia to implement a regional agreement with Malaysia in 2011 raised serious concerns about its compliance with international and domestic law and was hence challenged in the High Court of Australia. The High Court's intervention, in which it found that the Arrangement between the Government of Australia and the Government of Malaysia on Transfer and Resettlement was not capable of complying with legislative protections designed to uphold the Convention relating to the Status of Refugees ('Refugee Convention'), has not only provided guidance as to the limits of Australian domestic law in this regard, but has made an important contribution to our understanding of the limits of the Refugee Convention in accommodating responsibility sharing regimes. This article examines the High Court's judgment in Plaintiff M70/2011 v Minister for Immigration and Citizenship, explaining its background and significance in Australian law, and analyses and assesses its importance to our understanding of the constraints which international law places on the ability of states lawfully to engage in responsibility sharing regimes.

CONTENTS

I   Introduction
II  Background to the High Court's Decision in MTO
III The Reviewability of Responsibility Sharing Regimes by Domestic
      Courts
IV  International Law and Responsibility Sharing: The High Court's
        Contribution
      A Sharing with Whom? Minimum Obligations of States Parties to
        Responsibility Sharing Arrangements
      B The Constraint of Non-Refoulement: Substantive and Procedural
        Aspects
      C The Meaning of 'Protection' in the Refugee Convention
      D The Decision to Transfer Individual Asylum Seekers: Procedural
        and Substantive Concerns
V   Conclusion and Implications

I INTRODUCTION

The Preamble to the Convention relating to the Status of Refugees ('Refugee Convention') (1) recognises that 'a satisfactory solution' to the 'social and humanitarian' challenge of refugee protection cannot be achieved without 'international co-operation', (2) a notion that remains as true today as it was (60) years ago when the key treaty for the protection of refugees at international law was drafted. (3) However, the Refugee Convention does not set out the manner by which states may engage in such cooperation, nor does it clearly outline the constraints that operate upon any attempt to engage in responsibility sharing regimes. (4)

This lack of precision and clarity has arguably been exploited by (mainly developed northern) states which increasingly in recent decades have relied on concepts of cooperation to engage in what is more accurately understood as burden-shifting, rather than burden-sharing arrangements. (5) This is perhaps illustrated most vividly in Australia's experience of the so-called 'Pacific Solution' (6)--a policy which ended ignominiously in 2008 with the acknowledgement by the then government that rather than promoting refugee protection, the policy was about 'the cynical politics of punishing refugees for domestic political purposes'. (7) Yet in 2011 the same government that ended the Pacific Solution attempted to institute a new scheme of responsibility sharing in the form of an Arrangement between the Government of Australia and the Government of Malaysia on Transfer and Resettlement ('Malaysian Arrangement'), (8) which would have resulted in the transfer of 800 asylum seekers from Australia to Malaysia in exchange for up to 4000 recognised refugees from Malaysia to Australia. However, before the first asylum seekers could be transferred from Australia to Malaysia, the Australian High Court intervened, in dramatic fashion, to prevent their removal. …