High Court Refugee Case

[Mark Warton]

The High Court case on refugees continues the long and somewhat unproductive argument about what to do with refugees. It is possible that the Federal Labor Government got too ambitious with its plan of deterrence based on sending refugees to Malaysia.

The substance of it was to scare off potential refugees with the threat of sending them to Malaysia. Malaysia adopts a somewhat relaxed approach to refugees and is not interested in giving them treaty protection.

There was the usual dissenter in the decision ,Justice Heydon. The Chief Justice gave a separate decision, but most of it was a joint judgment by several justices. The dirty word derived from the treaty is "refoulement", appropriately derived from the French language. Obviously the treaty which was signed would be pretty useless if refugees could just be sent to some further unsatisfactory place after their arrival.

It seems possible that with the right arrangement, perhaps where the refugees went to another place which has signed on to the refugee convention, the Federal Government might be able to pull off the trick it tried. However, chances are that most places which have signed the treaty would be at least semi civilized places which would not probably agree to a deal in the first place. Certainly Justice Heydon could be convinced, since he was happy to accept the current deal. The question is, would the others.

The are of course 2 other options. Don't incorporate the convention provisions into our domestic law (which would more or less equal not having signed on for it) or withdraw from the treaty. Here is a link to the decision for your assistance.

http://www.austlii.edu.au/au/cases/cth/HCA/2011/32.html