Article: The Australia-Malaysia Refugee Swap



My journey to Africa for is part of my bigger journey into academia.  This journey began in earnest when I enrolled in the PhD program at the start of last year, but really I have been on the path for a long time.  Since finishing school about 15 years ago, I have spent barely more than a year outside a university.  I used to think this was because I couldn't decide what I wanted to do, but in fact I knew exactly what I wanted to do: keep studying.  So when I finally resigned myself to the fact that I was never actually going to stop, I decided I better get serious.

The PhD is the first step towards this goal, and in Australia at least it is pretty much a prerequisite to an academic job.  But the holy grail of academia is not just qualification, its publication.  So this week I am celebrating the publication of my first article!  The article is entitled 'Australian Asylum Policy All at Sea: An Analysis of Plaintiff M70/2011 v Minister for Immigration and Citizenship and the Australia-Malaysia Arrangement'.  I co-authored it with my supervisor, Jane, and it was published in the International and Comparative Law Quarterly by Cambridge University Press.

Many will know of the Australia-Malaysia Arrangement, a deal struck in 2011 between the two governments whereby Australia proposed to transfer up to 800 asylum seekers arriving by boat, in exchange for the resettlement of some 4000 refugees already in Malaysia.  It was part of the government's deterrence policy, designed to stop people boarding leaky boats in Indonesia and travelling to Australia in an unauthorised manner.  But the extremely poor human rights record of Malaysia, particularly in relation to its treatment of asylum seekers and refugees - who are routinely arrested, detained and beaten there - led to grave concerns about the treatment of individuals proposed to be transferred, and for Australia's fulfilment of its domestic and international legal obligations to protect refugees.

The deal was eventually struck down by the Australian High Court, which found that the government was proposing to act outside the powers conferred on it by Australia's Migration Act.  In essence, this means that if the government were able to amend this legislation, the deal could yet go ahead.  But with a current minority government and staunch resistance from the opposition, this looks unlikely to happen any time soon.  Furthermore, the High Court, in overturning the deal, gave extensive consideration to Australia's obligations to refugees under international law - in particular under the 1951 Refugee Conventions and other human rights treaties to which Australia is a party.

This article analyses the proposed Australia-Malaysia swap and the High Court's judgment in Plaintiff M70/2011 v Minister for Immigration and Citizenship from the perspective of international law, and shows that, even if Australian legislation could be passed to facilitate the deal, it would nevertheless be in flagrant disregard of Australia's human rights and refugee protection obligations under international law.

You can find the article on the journal's website here.  Happy reading!