MJIL Symposium: A Response to Mary Crock and Susan Kneebone by Michelle Foster

[Dr Michelle Foster is an Associate Professor and Director of the International Refugee Law Research Programme in the Institute for International Law and the Humanities at the Melbourne Law School.]

This post is part of the MJIL 13(1) Symposium. Other posts in this series can be found in the related posts below.

Both Professor Crock and Professor Kneebone, in their respective contributions, raise interesting and important questions about state responsibility in the context of burden sharing/shifting schemes.  Questions surrounding responsibility are vividly raised in the current scheme of transfer of asylum seekers from Australia to Nauru given that the Australian government is determined to maintain the position that once transferred, asylum seekers will be the responsibility of Nauru alone.  This position has been said by both the Australian and Nauruan governments to be supported by the recent passage of the Refugees Convention Act 2012 (Nauru)- an Act that for the first time in Nauruan law establishes a system of refugee status determination, including merits and judicial review.  Notwithstanding this, there is reason to believe, as does Crock, that ‘the entire scheme is a paper façade for a system that will be run by Australians and for Australia’.  The very fact that the Nauruan Immigration Regulations 2000 now recognize a special visa category entitled the ‘Australian Regional Processing’ visa supports the notion that at the very least the Nauruan government understands that it is dealing with an Australian problem.  Further, while the Refugees Convention Act 2012 is an important step in establishing a domestic system of RSD in Nauru, as the UN High Commissioner for Refugees, Antonio, Guterres, has noted recently, there is no ‘experience or expertise to undertake the tasks of processing and protecting refugees’ in Nauru.  Given the complexity of modern refugee status determination, including the hundreds of high level appellate decisions in Australia alone elucidating the key elements of the refugee definition, it is implausible to believe that Nauru- a country with a population of 9,300 people – would have the resources to make first level determinations of refugee status or to populate the new refugee status review tribunal without considerable assistance from Australia.

As Professor Kneebone rightly observes, under the principles of state responsibility, states can be jointly and severally responsible for harm.  In the present context this harm may take the form of refoulement if refugees are returned to a risk of persecution due to an inadequate status determination procedure including lack of legal representation, as well as the harm suffered by asylum seekers awaiting status determination and, subsequent to recognition as refugees, resettlement in Australia or elsewhere.

Further, Professor Kneebone notes that responsibility could also be considered at the national level, discussing specifically the duty of care owed by detaining authorities.  In this regard it is also worth noting that while the Australian government has attempted to shield the transfer to and treatment of asylum seekers in Nauru from judicial scrutiny by Australian courts by amending s 198A of the Migration Act, the High Court of Australia has displayed its willingness to scrutinize the substance- not merely form- of executive action.  In M61, the High Court rejected the Minister’s characterization of the refugee status determination system established in Christmas Island as ‘non-statutory’ and outside the operation of Australian domestic law, finding instead that the system was subject to judicial review by Australian federal courts and was required to be operated according to the rules of procedural fairness and in compliance with Australian law.  While asylum seekers have now been removed to a foreign territory- as opposed merely to an ‘excised’ territory- there may nonetheless be interesting questions around the scope of the High Court to review Australia’s actions on Nauru.

In short, Professor Crock and Professor Kneebone have raised some important questions about Australia’s responsibility- both under international and domestic law- that will continue to be debated as Australia’s policies of burden shifting continue to evolve.

Detrol