McAdam, Jane --- "Australian Complementary Protection: A Step-by-Step Approach" [2013] UNSWLRS 21

Last Updated: 24 March 2013

Australian Complementary Protection: A Step-by-Step Approach

Jane McAdam, University of New South Wales


This paper is available for download at Available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2232548

Citation

This paper was published in [2011] SydLawRw 29; 33 Sydney Law Review 687-734 (2011). This paper may also be referenced as [2013] UNSWLRS 21.

Abstract

The passage of the Migration Amendment (Complementary Protection) Act 2011 (Cth) in September 2011 has brought significant and welcome changes to the Migration Act 1958 (Cth) (‘Migration Act’). By implementing a system of ‘complementary protection’ in domestic law, it gives effect to Australia’s international human rights law obligations not to return people to places where they face a real risk of arbitrary deprivation of life, the death penalty, or cruel, inhuman or degrading treatment or punishment. However, the legislation makes the Australian system of complementary protection far more complicated, convoluted and introverted than it needs to be. This is because it conflates tests drawn from international and comparative law, formulates them in a manner that risks marginalising an extensive international jurisprudence on which Australian decision-makers could (and ought to) draw, and in turn risks isolating Australian decision-making at a time when greater harmonisation is being sought.