In recent years, there has been a significant amount of innovation in Australia’s policy, legislation and executive decision-making pertaining to people seeking asylum. This has raised important questions about the domestic law boundaries within which Australia’s refugee policy takes shape. This has been underlined by a significant amount of recent litigation testing these boundaries, particularly in the areas of constitutional law, administrative law and tort law.

This project charts the evolution of domestic legislation and case law pertaining to people seeking asylum in Australia. Where new legislative developments are proposed, the project team provide analysis and media commentary, and have also played an active role in contributing to parliamentary committee inquiries through submissions [link to submissions page] and in-person evidence.

The project also encompasses ongoing research into two significant aspects of Australian refugee policy. The first is scope for establishing public law limits on government power over refugees, in a context where this power is increasingly characterised by expanded statutory executive discretions. The second is the extent to which there are constitutional limits on the exercise of non-statutory executive power over asylum seekers in detention.

Public law limits of government power over refugees and asylum seekers (Dr Sangeetha Pillai)

In recent years Australia has seen significant legislative innovation in the migration context. A key feature of such legislative innovation has been the progressive expansion of executive discretion pertaining to asylum seekers. These innovations test the boundaries of legislative and executive power in the immigration context. To date, these boundaries have not been well defined. Consequently, we are currently experiencing what is arguably Australia’s most definitive period at the intersection of public law and migration law. There are also emerging questions about the extent to which other areas of domestic law, such as tort law, intersect with migration law and policy.

Many of the above developments have been the subject of excellent discrete analysis, particularly in the form of case notes and blog posts published in the wake of judgments being handed down. This work has been invaluable in terms of enabling lawyers, academics and other interested persons to keep abreast of significant developments as they happen. What is currently missing in the scholarship, however, is any sustained analysis of the extent to which the public law boundaries of government power over non-citizens in Australia have been defined, and the potential avenues for future definition in the future.

This project will conduct such an analysis, by producing a body of research that explores and clarifies the extent to which the public law boundaries of government power over non-citizens in Australia have been defined. The project will focus primarily on the way in which government power is exercised over refugees and asylum seekers, however the scope of government power over non-citizens more generally may also be considered, to the extent that this can help to shed light on the conceptual factors that inform the limits of government power in this area.

Legislative and case developments (Dr Sangeetha Pillai)

The project keeps track of significant legislative and case law developments that shape the domestic law framework that governs people seeking asylum in Australia. The project team conducts analysis of key cases and legislation, and plays an active role in making submissions and providing evidence to parliamentary inquiries into proposed legislation.

Asylum seekers, mandatory detention and constitutional limits on the exercise of non-statutory executive power (Shreeya Smith)

This PhD project investigates principled approaches to the question of limits on the non-statutory coercive executive power of the Commonwealth. It explores this question through the lens of whether the executive arm of government has the power to detain non-citizens without statutory authority in three contexts: seeking asylum, counter-terrorism and in response to a public health epidemic.

  Jane McAdam and Fiona Chong, Refugees: Why Seeking Asylum Is Legal and Australia’s Policies Are Not (UNSW Press, Sydney, 2014) 
   
   
   
   

 

 

The Kaldor Centre plays a vital role in developing legal, sustainable and humane solutions for displaced people around the world.