LEGAL EVOLUTION: THE IMPERATIVE TO EXPAND THE MIGRATION ACT 1958 (CTH) S 5H-J.

BY PHOEBE THOMPSON

Humanity is on the verge of the largest crisis in human history – climate change. Urgent action is necessary, encompassing scientific, structural and legal advancements.

Climate refugees, expected to become the largest displaced population, face a legal gap as their imperative need for protection is not recognised in law as a valid basis for claiming refuge.¹

In 1951, the Refugee Convention adopted the definition of a ‘refugee’ into municipal law as someone with a wellfounded fear of persecution on the grounds of race, religion, nationality or membership of a particular social/political group.²³ This definition was formulated when the devastating consequences of human-induced climate change were largely inconceivable,4 confining the definition in a way that is most likely irreconcilable with the unavoidable reality of climate change and the existence of climate refugees.5

Climate change, unlike traditional reasons for seeking protection, is indiscriminate and does not affect people on the grounds of an innate or fundamental characteristic of their identity as stipulated by the Refugee Convention and Migration Act 1958 (Cth) s5J (‘Migration Act’).

However, Climate Refugee Status cannot be indiscriminately applied to all whose traditional or preferred lifestyles are threatened.6

As with the harrowing prediction of 1.5 degrees global warming by 2050, all of humanity will likely be threatened.7 Extending refugee status without discrimination would not only contribute to additional bureaucratic disorder in an already complex and sluggish legal domain but also diminish the significance and credibility of conventional refugee claims due to the overwhelming surge in eligibility or even the potential for universal eligibility.

Refugee Status must continue to be preserved as a last resort where human existence and life itself are threatened.

Accordingly, a climate refugee has no choice but to leave their country of origin due to threat, not to a traditional or preferred way of life, but to the ability to live at all.8

There are three ways in which this uncharted legal territory could be navigated to allow climate refugee’s unique status to be recognised in Australian domestic law.

¹ Bonnie Docherty and Tyler Giannini, 'Confronting a Rising Tide: A Proposal for a Convention on Climate Change Refugees' (2009) 33(2) Harvard Environmental Law Review 349, 359.

² Migration Act 1958 (Cth) s 5H-J.

³ Convention Relating to the Status of Refugees, open for signature 28 July 1951, 189 UNTS 146.

4 Issa Ibrahim et al, ‘Climate change and forced migrations: An effort towards recognizing climate refugees’ (2017) 84 Geoforum 147.

The first way is through reading the current definition of a Refugee as inclusive of Climate Refugees. This method would involve a very creative, radical, ‘Kirby-esque’ interpretation of the word ‘persecution’. It would argue that Climate Refugees experience persecution, which entails harm and suffering on the grounds of their nationality. The necessity to seek protection from such harm and suffering is dependent on being a citizen of a state severely impacted by climate change.

However, after drawing on a defining legal tragedy and failure of our time, the overturning of Roe v Wade9, it is clear that essential and life-giving laws must have an iron clad constitutional or legislative base centred around the group concerned and that existing legislation or active cases that are not inextricably linked to the matter or group concerned should not be used to circumvent the imperative to create strong laws for the sake of fast or convenient change in international laws.

5 Ibid.

6 Matthew Lister, ‘Climate Change Refugees’ (2014) 17(5) Critical Review of International Social and Political Philosophy 618, 621 (‘Climate Change Refugees’).

7 IPCC, ‘Climate Change 2022: Impacts, Adaptation, and Vulnerability’ (Assessment Report, No 6, IPCC, 4 April 2022) 4.

8 Climate Change Refugees (n 6) 621.

9 Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228, 213 L. Ed. 2d 545, 2022 U.S. LEXIS 3057, 29 Fla. L. Weekly Fed. S 486, 2022 WL 2276808 (U.S. June 24, 2022).

Like Ruth Bader Ginsburg opposed the physician-centred rather than woman-centred Roe v Wade10, the recognition of Climate Refugees on such untenable ground leaves this group vulnerable to the discretions of decision-makers of the day.

The second way, expanding the Migration Act that would rely on an international treaty that does not yet exist. Assuming that an international treaty obligating nations to acknowledge the existence of Climate Refugees and legalise their claim for protection was created, this could form a potential basis for expanding the Migration Act 11

However, treaties are not self-executing,12 and with a legal system that is a slave to the political system, depending on the government’s will Australia may not even ratify let alone act on the obligations imposed by such a treaty.13

Perhaps the hasty and weak expansion of the Migration Act through creative judicial or statutory interpretation would be preferable to the lengthy process of waiting for potential national legal change contingent upon potential international legal change.

The third way Australian law could evolve to recognise those who will be displaced by Climate Change would be through an amendment to the Migration Act or new law passed under the ‘Immigration and Emigration’ power. 14

However, the legal system is arguably a tool for the most powerful. To generate enough momentum to even bring a bill, let alone pass a law through a conservative parliament, would require significant political, cultural and societal revolution and overwhelming national and international pressure to recognise this rapidly emerging claim of protection.

None of the abovementioned methods will likely fill this gaping legal void.

We must acknowledge the slow-moving and conservative reality of the legal system and the fact that the law responds well to slow incremental changes. As Chief Justice Kiefel refers to it as ‘little nudges in the right direction’,15 rather than radical developments, particularly in fields of human rights. So much so that in the landmark Mabo decision,16 considering contemporary notions of justice and human rights was held to amount to ‘fractur[ing] the skeleton’ of Australian Law.

Therefore, maintaining the correct legal position, recognition, and category – that is, the elusive refugee status – would actually do a disservice to the climatic diaspora.

We must create legal channels for climate immigration and acknowledge the imperative to allow for some stability and security for those who will flee climate change.

Whilst a climate immigrant does not reflect the true position of climate refugees, it is a temporary and rough solution that can be enacted within an imperfect and slow-moving legal system, without fracturing the skeleton of refugee law. It must then be applied in the hopes that it generates enough momentum and pressure to recognise the true status of Climate Refugees and the necessity to create iron-clad legislations to fill this gaping legal void.

10 Oliva Waxman, ‘Ruth Bader Ginsburg Wishes This Case Had Legalized Abortion Instead of Roe v. Wade’, Time (online, 24 June 2022) < https://time.com/5354490/ruth-baderginsburg-roe-v-wade/>.

11 Australian Constitution s 51(xxix).

12 Victoria v The Commonwealth (1996) [1996] HCA 56.

13 Ibid.

14 Australian Constitution s 51(xxvii).

15 Avril Janks, ‘A nudge in the right direction’, LSJ Online (Online, 28 November 2022) < https://lsj.com.au/articles/a-nudge-in-the-right-direction/#:~:text=Hal%20Wootten%20 believed%20that%20all,nudge%20in%20the%20right%20direction>.

16 Mabo v Queensland (No 2) (1992) 175 CLR 1, 18 (Brennan J).