Why Judges Should Not Make Refugee Law: Australia's Malaysia Solution and the Refugee Convention

AbstractIn 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 plaintiffs proposed an interpretation of the immigration statute that incorporated elements of the Convention Relating to the Status of Refugees, most notably the prindple 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 argues that the Malaysia Solution does not necessarily molate 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 kws of the domestic polity and leave the work of incorporating international refugee norms to the democratically accountable branch of government-the legislature.Table of ContentsI. Introduction 616II. A Brief History of Boat People in Australia 620III. The Competing Legal Regimes 621A. The International Regime: The Refugee Convention 622B. The Domestic Regime: The Migration Act 626C. Interpretive Methods for Reconciling the Regimes 628D. Is Section 198A Compatible with the Refugee Convention? 631IV. The High Court's Decision 633A. The Dualist: Justice Heydon 634B. The Fence Sitter: Justice French 636C. The Monists: The Joint Judgment 638V. What the M70 Decision Says about Incorporation of International Law .... 640A. Revising the Migration Act 641B. Revising Our Understanding of Incorporation 6421. Political accountability and democratic legitimacy 6442. Legislative clarity and agency costs 6453. Transparency and predictability 645VI. Conclusion 646I. INTRODUCTIONOn December 15, 2010, residents of Australia's Christmas Island awoke to screams and pleas for help.1 A rickety boat carrying foreign asylum seekers had crashed along the island's shore.2 With rescue made difficult by rocky topography, the incident eventually claimed as many as fifty lives, including some children.3 The story was shocking and widely publicized, all the more because the carnage was captured on video for the whole country to watch.4 The Christmas Island shipwreck instantly became a political fulcrum in Australia, which for decades had wrestled with immigration policy.5 Prime Minister Julia Gillard set about to "smash" the "people smugglers' business model."6 Aldiough the legislation was intended to prevent another Christmas Island shipwreck, Gillard's disdain for a "big Australia" filled with unwelcome immigrants helped fuel the rush to reform.7The policy that emerged was known as the "Malaysia Solution," codified in a Memorandum of Understanding (MOU) between Australia and Malaysia.8 To dissuade asylum seekers and their smugglers from setting sail for Australia,9 the Gillard government resolved to send illegal migrants away to Malaysia for processing. …