A Critical Evaluation of Australia’s Border Protection Program




Brisbane,July 20, 2014(Alochonaa): The emergence of “Little Guantanamos” as a Western response to asylum seekers illustrates the nuanced consequences of an increasingly globalized world. Contrary to some of the 20th century predictions, globalization and the concomitant influx of refugees has seen a strengthening and clarification of sovereign borders. Australia’s response to asylum seekers since the Howard government has conformed – and led the way – in many of the broader international trends. However recently these themes have become more punitively developed and governments have become more adept at evading judicial and political accountability. While there are many avenues to critical evaluate these policies, I focus on: (i) the dehumanization and criminalization of asylum seekers; (ii) the use of unregulated and unaccountable executive powers; and (iii) the privatization of detention with the aim of removing judicial accountability.


The Transformation of Asylum Seekers

The transformation of asylum seekers into an illegitimate other has provided political justification for governments to employ inhumane and punitive measures. It’s worth noting that refugees have historically done it tough – the international system has/is shaped in such a way as to never securely recognise their status and rights.

Hannah Arendt was one of the first to note this. In The Origins of Totalitarianism Arendt recognised – drawing on her experience as a refugee – that the nation-state system only serves citizens, and not refugees. While there was an emergence of rights-talk during the consolidation of a nation-state system, it left stateless persons in a juridically-ambiguous position. This led Arendt to conclude that without citizenship, refugees or stateless persons do not have the “right to have rights”. Giorgio Agamben picked up on this work (and that of Carl Schmitt) to illustrate how the modern refugee represents a more historical distinction between citizen and non-citizen. This led Agamben to declare that stateless or unrecognised persons had been classed as homo sacer – individuals reduced to “bare life” whereby they lose all basic rights shared by the polity. This kind of moral ambivalence and vague person-hood doesn’t occur in spite of the nation-state system; it is a consequence of it.

It’s not difficult to see how asylum seekers have slotted into this awkward juridical space. They are bound to punitive laws and inhumane measures, without the legal recourse to properly argue their case. The “Enhanced Screening Processes” are an example of this. However the criminalization of asylum seekers and refugees illustrate active political exploitation by governments.

The unfortunate frequency with which governments seek to associate immigration and crime has led researchers to categorize “Crimmigration” as its own phenomena. There are many different ways in which this can be studied and explained, but I think Michael Welch has hit the nail on the head with his use of Foucault’s homo eoconomicus (Economic Man) to explain Australian Crimmigration.

Some terminology in Rational Choice Theory

Some terminology in Rational Choice Theory

Foucault traced how the Law & Economics interdisciplinary enterprise led to a cross-fertilisation (or infection) of concepts between “justice” and the economy. It became increasingly useful for policy-makers to explain crime in neo-liberal discourse in order to characterize it as a consequence of rational self-interested decision-making where individuals calculated reward against punishment.

An example in Australia is the characterization of asylum seekers as “queue jumpers”, economic migrants or illegitimate in order to justify their punishment. Tony Abbott in the lead up to the 2013 election uttered these sentiments:

The overwhelming majority of the people who are coming to our country illegally by boat have come via other countries where they could readily have claimed asylum. The fact that they are determined not to stop until they come to Australia means that they are overwhelmingly economic migrants not genuine asylum seekers.

This and recent commentary illustrate an intent by conservatives to characterize asylum seekers as mischievous and underhanded. This is a classic conservative trope which makes an incredibly complex policy problem appear a simple case of crime that requires border protection.


The Expansion of Executive Power

It is worth seriously assessing what kind of Australian government operates on these off-shore processing units. My argument – drawing once again on Schmitt and Agamben – is that Australia’s off-shore processing units are authoritarian geographical spaces where rights and the rule of law are virtually absent.

Schmitt and Agamben have both argued that the true power of nation-states doesn’t reside in a liberal constitution. Schmitt argued that constitutions – with their predicatable legal norms as opposed to sovereign arbitrary discretion – can never truly constrain the sovereign’s power. The oversight becomes most apparent in an “absolute state of exception”; an existential crisis facing a state in which the sovereign must choose to suspend the law in order to appropriately respond. Agamben argues that this state of exception has in fact become the paradigmatic form of government from the middle of the 20th century. The exception has become the rule through the institutionalization and constitutional construction of “peace” and “seige” political climates. More frequently governments have sought the construction of “crises” in order to enact increasingly punitive or extreme policy measures that are normally outside the Executive’s powers.

It seems like we skip from one emergency to the next - Both Rudd and Abbott have employed this.

It seems like we skip from one emergency to the next – Both Rudd and Abbott have employed this.

The Australian legal system – not necessarily by incorrect legal/constitutional interpretation – has normalized this state of exception. Australia’s dualist system  has secured the executive’s right (despite international obligations) to keep asylum seekers in detention indefinitely (Al-Kateb v Godwin), arguing that it would be “heretical” to suggest international human rights should be binding (per McHugh J). The same position applies to children, with the court in MIMIA v B & B validating the executive’s power despite inconsistencies with international law. This emergence sees the normalisation of exceptional violence on asylum seekers. To clarify, the violence comes in the form of conditions which have been subject to serious condemnation.


The Evasion of Judicial Oversight

Despite the case law cited above, the courts have still restricted executive power in some cases. However this is also being seriously subverted through the privatization and deference of processing responsibilities.

Welch argues that the deregulation of Australian off-shore processing has allowed executive measure to sit outside of democratic measures to ensure accountability. While some suggest that this will improve service efficiency, others have serious concerns about how courts have maintain oversight of these executive actions. The recent award of a $1.22b contract to Transfield Services illustrates the size and extent of multinational corporate interests in asylum detention.

Multinationals delivering public services don't fit well within our traditional mechanisms for accountability.

Multinationals delivering public services don’t fit well within our traditional mechanisms for accountability.

With increasing secrecy around the conditions of these contracts, it’s unclear how Australian courts or citizens can get a fair appraisal of processing mechanisms and conditions on off-shore centers. If you want an example of how privatization isn’t working, look to Plaintiff M61/2010E v
Commonwealth of Australia where the court had the rare opportunity to hear how private companies displayed stunning and persistent incompetence (in this case it was Wizard People Pty Ltd who were hired as “experts” to assist the Independent Merits Review processing procedures).

However it’s not only the privatization of detention that is an issue, but the deference of responsibility to third-party countries. While Australia provided the funding for these processing units, DIBP Minister Morrison confirmed that:

Under arrangements made by the former government, control and management of the centre is placed within the PNG government, consistent with their sovereign responsibility.

Some have argued that the use of off-shore processing has been pursued with the aim to actualize inhumane policies free of the exigencies of domestic judicial review or international law. It’s not difficult to see how cash-strapped countries would jump at the chance to have massive public and private investment in their country, but have nowhere near the necessary expertise or capacity to fairly deliver services. However this is not the concern of the Australian government or 71% of Australians – the main aim is out of sight, out of mind.


These are Concerning Trends

These trends and the increasing secrecy are of real concern. How can a government so seriously undermine democratic principles with the direct support of the Australian population? How has the Australian polity allowed the debate to be framed in such simplistic rationalist terms? This subversion shouldn’t just be of concern to refugee advocates – it should worry anyone who sits at the periphery of Australian society’s norms. This kind of rationalist-wedge politics is becoming a central narrative that structures contemporary political debates. It allows us to talk exclusively and ignorantly about complex topics like immigration, domestic violence and race. We need to find a balance between pragmatic policy and emotionally-manipulative discursive techniques.


1 reply »

  1. This is an excellent examination of the underlying principles of current Australian refugee policy. I especially like the choices of focus Simon has made in building his model in this piece.

    The long history of ’emergency exceptionalism’ that exists in democracies to overcome the limitations of constitutionality and capture democratic will is ably applied to the policy. The exploitation of this by the executive and their exclusion of judicial rule-based and bureaucratic problem-solving approaches is very well argued here. The contracting out of core governmental functions in order to avoid accountability is also well-situated in the analysis.

    This is such a clear and well thought-out analysis of something many of us instinctually see as wrong. It helps to see it modelled in this way and located in the existing theory, so as to be able to reject the policy on principled grounds rather than intuitive ones.

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