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The Power of Activism: Creating Legal and Social Change for Children in Immigration Detention

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The Power of Activism: Creating Legal and Social Change for Children in Immigration Detention THE POWER OF ACTIVISM: CREATING LEGAL AND SOCIAL CHANGE FOR CHILDREN IN IMMIGRATION DETENTION SANDY SANDHYA JACKSON A THESIS SUBMITTED IN FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY SYDNEY LAW SCHOOL UNIVERSITY OF SYDNEY 2020 ABSTRACT In February 2019, the Australian government announced that there were no longer any children in offshore immigration detention. The influence of the Australian refugee advocacy movement on this outcome is important to understand because of its relevance to the global refugee crisis in which children continue to be detained across the world. My thesis examines how the Australian refugee advocacy movement has tried to create legal and social change for children in immigration detention using strategic litigation and grassroots advocacy. Cases are analysed to critically evaluate the success of lawyers in the courtroom to challenge an intransigent government determined to pursue its harsh policies. The mass mobilisation of activists and their efforts to shift public and political opinion are also examined. Drawing on the wider socio‐legal literature and notably the work of McCann, the integrated legal mobilisation framework is proposed. It consists of capabilities and practical grassroots strategies, and provides an in‐depth and evidenced way of understanding the influence of the Australian refugee advocacy movement in helping to achieve the release of children from immigration detention. Data from 41 interviews from refugee advocacy groups, activists, lawyers, doctors, journalists, bureaucrats, policy advisors, and politicians are used to evaluate how the capabilities and strategies have been used by the refugee advocacy movement to help create legal and social change for children in immigration detention. The integrated legal mobilisation framework is the most important novel contribution of my thesis. With further testing, the proposed framework may develop more universal importance as social movements continue to fight similar battles across the world. ii DECLARATION OF ORIGINALITY This is to certify that to the best of my knowledge, the content of this thesis is my own work. This thesis has not been submitted for any degree or other purposes. I certify that the intellectual content of this thesis is the product of my own work and that all the assistance received in preparing this thesis and sources have been acknowledged. The empirical work undertaken for this thesis (interviews) was approved by The University of Sydney Human Research Ethics Committee (HREC) (Approval number: 2016/794) iii To my parents, Prem and Shashi Kalia for always being there for me. iv ACKNOWLEDGEMENTS Thank you to my supervisors, Professor Mary Crock and Professor Judy Cashmore for giving me the opportunity to undertake this incredible journey under their expert supervision. I am grateful for their efforts to help me discover my passion and find my voice. I thank them for their encouragement, guidance and insightful comments which helped develop this thesis. A special thanks to Emeritus Professor Terry Carney for his detailed comments and constructive feedback in Legal Research 1 and 2 which helped me develop confidence in my skills and shape my project. I also thank him for reviewing my thesis prior to submission. Thank you to the interviewees who generously gave me their time and openly shared their experiences and insights with me. I am humbled by their dedication, passion and vision for a fair and just society where all people are treated with dignity and compassion. Most importantly I wish to thank my family for their love and support. Thank you to the love of my life, Chris, who has been my rock in providing me with endless support and encouragement. His unwavering confidence, relentless positivity and faith in my abilities gave me the courage to undertake such an extraordinary project. I am forever grateful for his sacrifices over the past four years juggling work and family commitments whilst my head was buried in the books. Thank you to my children, Samuel, Mikaela, Oliver and Meira for putting up with an absent mother and giving me space to focus on my research. I hope that I have inspired them to persevere, face life’s challenges and follow their dreams. These past few months deserve special thanks for their amazing support in so many different ways. Finally, I wish to thank my wonderful parents, Prem and Shashi who have instilled in me a passion for learning and a desire to excel. I am inspired by their strength and courage. Their boldness in forging a new life in a foreign land is a continual reminder of the importance of welcoming those who come from different cultures and of never forgetting our shared humanity. v TABLE OF CONTENTS ABSTRACT ........................................................................................................................... ii DECLARATION OF ORIGINALITY ......................................................................................... iii ACKNOWLEDGEMENTS ....................................................................................................... v TABLE OF CONTENTS ......................................................................................................... vi LIST OF TABLES ................................................................................................................... x LIST OF FIGURES ................................................................................................................ xi LIST OF ABBREVIATIONS ................................................................................................... xii CHAPTER 1 CHILDREN IN IMMIGRATION DETENTION ......................................................... 1 A Introduction ........................................................................................................................ 1 B Building opposition: The role of social movements ............................................................ 11 C Chapter Plan ...................................................................................................................... 15 CHAPTER 2 SOCIAL MOVEMENTS: THEORIES OF LAW AND SOCIAL CHANGE ..................... 18 A Developing the integrated legal mobilisation framework .................................................. 27 1 Unleashing the lawyers .......................................................................................................... 31 2 Social movement building ..................................................................................................... 35 (a) Framing and developing an agenda .................................................................................................. 35 (b) Generating mass involvement .......................................................................................................... 37 (c) Creating rights consciousness ........................................................................................................... 38 (d) Harnessing opportunity structures ................................................................................................... 40 3 Legal and political leveraging................................................................................................. 45 (a) Exploiting symbolic power of rights .................................................................................................. 45 (b) Compelling concessions .................................................................................................................... 46 (c) Developing and implementing policy ................................................................................................ 48 4 Surviving backlash .................................................................................................................. 49 (a) Political and legal backlash ............................................................................................................... 49 (b) Counter‐mobilisation ........................................................................................................................ 50 B Legal mobilisation in international contexts ...................................................................... 50 C Summary ........................................................................................................................... 52 vi CHAPTER 3 METHODOLOGY ............................................................................................. 54 A Introduction ...................................................................................................................... 54 B Research method and design ............................................................................................. 55 1 Research sources ................................................................................................................... 55 2 Qualitative research ............................................................................................................... 55 (a) Recruitment ...................................................................................................................................... 55 (b) Interview structure ........................................................................................................................... 59 (c) Reliability analyses ............................................................................................................................ 60 3 Other analysis .......................................................................................................................
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