This year is the 60th anniversary of Australia's ratification of the Refugee Convention. Our ratification brought the convention into force in international law.
Australia helped draft the Convention at the end of WWII and, in the years following, took in large numbers of displaced refugees. Associate Professor Michelle Foster believes we have a proud history.
"Over the last several decades the Australian judiciary has made an enormous contribution, not just to defining Australia's protection obligations, but also in contributing to a principled interpretation of the Convention which has then been taken up in other countries," says Professor Foster.
"The Refugee Convention is unique in that it's an international treaty, with almost 150 states party, yet its interpretation is undertaken by domestic courts, and there's no international court that can bring it all together. There is really a need for academic work in this area to make sense of these different judgements."
Associate Professor Foster has just published an important book, co-authored with Professor James Hathaway that makes a significant contribution to what she describes as the "judicial conversations" among judges in states bound by the Convention. The Law of Refugee Status (CUP 2014) is a timely work that looks at the fundamental question of asylum law: who is a refugee?
The book is a much expanded second edition to the original book which was published in 1991 when refugee law in Australia was in its infancy. It is a comprehensive work that covers 23 years of case law across 20 jurisdictions, as well as regional courts such as the European Court of Justice.
When the original was published there were only a handful of superior court judgements and very little legal analysis available on the refugee definition set by the Convention. The book became a seminal text on interpreting the definition, the gateway to refugee protection.
The biggest challenge for the second edition, says Associate Professor Foster, was the sheer volume of jurisprudence. Most developed countries now have a sophisticated system of refugee protection and the authors looked at superior case law in both common law and civil jurisdictions.
"Often you hear people say that the convention is outdated – 'It's a cold war document', 'It's no longer applicable' - but what really came through in looking at all the case law for the last 25 years is that it's shown itself to be remarkably responsive to contemporary concerns."
"That's really important because international treaties, especially normative treaties like this, have to evolve in order to maintain their effectiveness. The words that are used to define a refugee are very broad but that was intentional to a certain degree because it needs to be a living instrument."
While debate on refugees is centre stage for politics in Australia, the research on judicial decision making found again and again that courts have remained impervious to political arguments.
"There's so much rhetoric and very strong rhetoric from both sides about this," reflects Associate Professor Foster. "Our findings in all these cases gave reassurance of an independent judiciary and the importance of the rule of law."
The global analysis by Foster and Hathaway of refugee law's central question was awarded a grant by the Australian Research Council, which also supported two workshop reviews by international experts from both civil law and common law jurisdictions.
With the debate in Australia around the issue of asylum seekers now so politically charged and toxic, how does Associate Professor Foster view the coming 60 years?
"I think we need to be hopeful because Australians do have an enormous capacity to be generous. There are so many wonderful stories out there. About people being accepted by communities in rural Australia. In the cities. Volunteering... I think people are willing to consider this from an intelligent perspective when they do receive proper information."
"Also you've got to remember that these are real people and it's really not good enough for us to give up because there are people's lives at stake."
Banner image: Associate Professor Michelle Foster
Photographer: Peter Casamento