The Case of Christmas Island: How International Law Affects the Australian-Malaysian Refugee Deal

15 November 2013

In July 2011, Australia and Malaysia entered into an arrangement in which Australian asylum seekers would be removed to neighboring Malaysia to have their asylum claims processed. Following widespread criticism in the media, Australia’s High Court ruled that such a deal violated Australia’s refuges protection laws. While this ruling should have put an end to the deal, Australia’s Immigration Minister indicated that the agreement might nevertheless be feasible. Policy makers proposed amending Australian domestic immigration laws to allow the deal to go forward unencumbered. A bill to amend Australia’s Migration Act was subsequently introduced. As it currently stands, Australian law and international obligations are in agreement: the Malaysian deal would be improper. However, officials within the Australian government propose disrupting this synchronicity by amending the country’s internal laws. This comment addresses the interplay between Australia’s internal laws and its international obligations and proposes that an amendment to Australia’s Migration Act would not serve as panacea to such a proposed deal. While amending the Migration Act has the effect of overturning the discrete High Court ruling declaring the Malaysian deal improper, Australian courts have intimated that the country’s international obligations branch much further and are not so easily set aside.