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This subject offers JD students the opportunity to undertake advanced and specialised study in an important contemporary subset of public law. Refugee law in Australia (as in most of the 147 states party to the Refugee Convention) is inspired and guided by international treaty obligations but anchored in domestic constitutional and administrative law. It is therefore an excellent example of the interdependence of domestic and international public law.
At the heart of the course is the constant tension between international and domestic public law, a tension that exists across the legal system as a whole but is particularly poignant in the context of human rights law. This theme is examined throughout the course as students are introduced to the way in which this struggle has manifested in Constitutional Law (both in the context of interpreting the Commonwealth's broad plenary powers over 'aliens' and 'immigration' and in understanding the limits on Commonwealth power) and Administrative Law (by examining the significant impact which refugee law has had on shaping and pushing the boundaries of administrative law principles). Another central theme is the tension between branches of government; in particular the courts on the one hand and the legislature and executive on the other.
The subject will begin with an historical introduction to international refugee law, before turning to consider the key international instruments for the protection of refugees including the Refugee Convention and Protocol (including the role of the UNHCR); regional instruments; customary international law; and international human rights treaties. The course concentrates primarily on the 1951 Convention, exploring the key controversies in interpreting the refugee definition and extent of international protection afforded to refugees. This provides a framework for considering the implementation of the Refugee Convention in Australian domestic law. The course will also equip students to read, comprehend and contextualise comparative jurisprudence, because in examining the way in which Australian decision-makers have interpreted the definition of 'refugee', students will study high level case-law from across the common law world, as well as some key decisions from civil law jurisdictions.
Refugee law is taught in the format of a 3 hour seminar per week, designed to facilitate deep engagement with the material in the form of class discussion and interaction. In addition, guest speakers will address the students in order to provide an understanding of recent developments and cutting edge issues in refugee law and practice in Australia and internationally.
Intended learning outcomes
A student who has successfully completed the subject should have a rich and integrated understanding of the domestic and international aspects of the governance of refugee law in Australia. In particular, students should:
- Understand the international development of refugee law;
- Have specialised knowledge of the different international instruments governing refugee law at the international level and understand the differences between them;
- Have advanced knowledge of the framework for resolving the key controversies in interpreting the definition of 'refugee' in the 1951 Refugee Convention, namely, by reference to the rules of treaty interpretation and comparative jurisprudence;
- Have an expert understanding of the way in which international refugee law is implemented in the Australian domestic legal system;
- Understand at an advanced level the structure of decision-making in Australian refugee law, including the important role of tribunals and the limited nature of judicial review;
- Have insight into the practical operation of refugee law in Australia and an ability to critically analyse and reflect on the limits of judicial review;
- Have advanced and specialised knowledge of the way in which refugee law has shaped the development of administrative law principles; and
- Have an advanced and nuanced understanding of the challenges in implementing international refugee law in Australia domestic law and be able to reflect critically on current refugee policy including in respect of regional processing arrangements.
On completion of Refugee Law, students should have developed and demonstrated their skills in the following areas:
- Advanced and specialised skills in reading, comprehending and interpreting Australian legislation and case-law;
- Advanced technical skills in treaty interpretation (drawing on and extending skills in statutory interpretation developed in previous public law compulsory subjects);
- An expert ability to read, comprehend, reflect on and synthesise case-law interpreting the definition of 'refugee' from a wide range of common law and civil law jurisdictions;
- An ability to understand and apply general principles and theories of international law and international human rights law to the specialised context of refugee law;
- An advanced capacity for critical and independent thought and reflection, in particular to reflect critically on contemporary refugee law, policy and practice in Australia; and
- An advanced ability to observe, evaluate, interpret and transmit an analysis of a discrete refugee law case in the form of written assessment.
Last updated: 3 November 2022