The Rudd/Gillard Government, Asylum Seekers, and the Politics of Norm

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The Rudd/Gillard Government, Asylum Seekers,

and the Politics of Norm Contestation

Katja Cooper

B Arts (International Relations)/B Laws (Hons)

A thesis submitted for the degree of Doctor of Philosophy at The University of Queensland in 2019

School of Political Science and International Relations (POLSIS)

Abstract

This thesis examines the important role that humanitarian arguments played in influencing the trajectory of Australia’s asylum seeker policy during the Prime Ministerships of Kevin Rudd and Julia Gillard (2007 – 2013). In the leadup to the 2007 Federal Election, Rudd declared that Australia had a moral obligation to treat asylum seekers with compassion because the ‘biblical injunction to care for the stranger in our midst is clear.’ During his first year in office, Rudd largely fulfilled his promise to comply with the ‘letter and the spirit’ of the Refugee Convention by ending offshore detention on Nauru and Manus Island, abolishing Temporary Protection Visas (TPVs), and declaring that mandatory detention would only be used as a ‘last resort.’ However, by 2013, Labor’s humanitarian platform on Irregular Maritime Arrivals (IMAs) had been largely abandoned. Faced with a significant increase in boat arrivals, an overburdened immigration detention system and an increasingly hostile public, both Rudd and his successor Gillard responded by gradually reintroducing the punitive measures that had comprised the Howard Government’s Pacific Solution.

In order to ascertain why Rudd’s attempt to take Australia’s asylum seeker policy in a more humanitarian direction was unable to be sustained, I will undertake a normative analysis of the language that both Labor and the Coalition used in order to legitimate their respective asylum seeker policies during the Rudd/Gillard era. I argue that while the abovementioned factors did play a crucial part in prompting Labor to repudiate its humanitarian stance on IMAs, it was the Coalition’s strategic use of compassion rhetoric that enabled Opposition leader Tony Abbott to de-legitimise both pillars of Rudd’s ‘hardline and humane’ policy. In particular, the so-called ‘drownings argument,’ which drew direct parallels between rising numbers of IMA deaths at sea and the Rudd government’s policy changes, fortified the Coalition’s argument that stronger border protection measures were necessary in order to ‘save lives’ by preventing IMAs from undertaking the perilous sea voyage to Australia.

In order to provide a comprehensive response to the research question, I developed a discourse- analytical conceptual framework that incorporates insights from the constructivist literature on Critical Norm Research (CNR). One of the key findings is that the domestic ‘meaning-in-use’ of international asylum seeker norms has not remained constant, but has rather evolved in response to agent-driven, structural and context-specific changes in Australia’s socio-political environment. By demonstrating that Labor’s humanitarian platform on IMAs significantly altered the discursive parameters of the asylum seeker debate during this period, this thesis therefore aims to make an original contribution to both the empirical literature on Australia’s political response to boat arrivals and the theoretical literature on norm contestation. ii

Declaration by Author

This thesis is composed of my original work, and contains no material previously published or written by another person except where due reference has been made in the text. I have clearly stated the contribution by others to jointly-authored works that I have included in my thesis.

I have clearly stated the contribution of others to my thesis as a whole, including statistical assistance, survey design, data analysis, significant technical procedures, professional editorial advice, financial support and any other original research work used or reported in my thesis. The content of my thesis is the result of work I have carried out since the commencement of my higher degree by research candidature and does not include a substantial part of work that has been submitted to qualify for the award of any other degree or diploma in any university or other tertiary institution. I have clearly stated which parts of my thesis, if any, have been submitted to qualify for another award.

I acknowledge that an electronic copy of my thesis must be lodged with the University Library and, subject to the policy and procedures of The University of Queensland, the thesis be made available for research and study in accordance with the Copyright Act 1968 unless a period of embargo has been approved by the Dean of the Graduate School.

I acknowledge that copyright of all material contained in my thesis resides with the copyright holder(s) of that material. Where appropriate I have obtained copyright permission from the copyright holder to reproduce material in this thesis and have sought permission from co-authors for any jointly authored works included in the thesis.

iii

Publications included in this thesis

No publications included.

Submitted Manuscripts included in this thesis

No manuscripts submitted for publication.

Publications during Candidature

No other publications.

Contributions by others to the thesis

No contribution by others.

Statement of parts of the thesis submitted to qualify for the award of another degree

No works submitted towards another degree have been included in this thesis.

Research Involving Human or Animal Subjects

No animal or human subjects were involved in this research.

Financial support

This research was supported by a University of Queensland Research Scholarship (UQRS)

Australian and New Zealand Standard Research Classifications (ANZSRC)

160601 Australian Government and Politics (70%)

160607 International Relations (30%)

Fields of Research (FoR) Classification

1605 Policy and Administration (30%)

1606 Political Science (70%)

Keywords

Australia, asylum seekers, Rudd/Gillard governments, norm contestation, critical norm research.

Acknowledgements

The truth behind the proverb that ‘it takes a village to raise a child’ has been widely acknowledged. However, the same principle can be readily applied to writing a PhD. The lengthy and often challenging process of completing this research project would not have been made possible without the help and guidance of my supervisors, my family, the POLSIS community and the Graduate School.

First, I want to thank my supervisors Matt McDonald and Phil Orchard, who provided me with helpful and constructive feedback for my draft chapters and who understood that my significant caring responsibilities sometimes made it difficult to meet set deadlines (while still encouraging and guiding me towards completion). Second, I want to acknowledge the invaluable assistance of my family in getting me to this final stage. To my husband Danny (who has helped me to navigate this emotional rollercoaster since the beginning), my son Dylan (who will hopefully understand one day how hard mummy worked while still providing him with love and affection), and to his grandparents, who provided me with much-needed support and additional writing time. Third, I want to thank POLSIS and the Graduate School for enabling me to complete this PhD despite the numerous setbacks that I faced at various points of my candidature. As a PhD candidate and parent of a young child, the difficulties of maintaining a feasible work/life balance have at times seemed insurmountable. However, requests for assistance were always met with support and understanding by both parties, who took my circumstances into account and recognised that each PhD pathway is unique.

The PhD journey can also feel exceedingly lonely and isolating at times, especially when you are primarily working off-campus and therefore often do not have the benefit of engaging directly with your research community. Therefore, I would also like to thank all of the wonderful PhD mums and dads from the Facebook groups PhD and Early Career Researcher Parents, Virtual SUAW – Parents Edition, and the Full Draft Club for providing me with invaluable emotional support during those fraught 2am writing sessions and for reminding me that there are others that have faced similar challenges and succeeded nonetheless. Being able to share your triumphs, commiserate with your setbacks, and cheer you on when you pressed the submit button helped me when I needed it the most.

Table of Contents

Abstract ...... i Declaration by Author ...... ii Preliminary Matters ...... iii-iv Acknowledgements ...... v Table of Contents ...... vi-ix List of Acronyms and Abbreviations ...... x-xiii

Introduction

I. Research Problem ...... 1

Research Question ...... 2 Contribution to knowledge ...... 4

II. The International Normative Regime on Refugees and Asylum Seekers: Principle versus Practice ...... 6

Defining the Scope of State Obligations to Asylum Seekers ...... 8 International Norm Dynamics and Domestic Change ...... 10

III. The Domestic Contestation of International Asylum Seeker Norms in Australia ...... 11

Sovereign Borders, Threatening ‘Others’ and ‘Fair’ Queues ...... 12 Australia’s Asylum Seeker Policy under the Rudd/Gillard Government ...... 14

Conclusion ...... 18

Chapter 1 – The Domestic Contestation of International Norms: A Conceptual Framework

Introduction ...... 19

I. Tracing the Life-Cycle of Normative Change ...... 20

Norm Contestation During the Domestic Implementation Phase ...... 22 The Countervailing Effect of Embedded Domestic Structures ...... 24 The Sovereignty Paradox ...... 26 Norm Violations by Liberal Democratic States ...... 28 Leadership and Legitimacy ...... 29 The Relationship between Political Discourse, the Media, and Public Opinion ...... 30 vii

Timing and Context ...... 32

II. Critical Norm Research: Bridging the Conceptual Divide ...... 33

Critical Norm Research (CNR) ...... 34 The ‘Cycle of Potential Contestation’ ...... 32 The Politics of Legitimation ...... 35 Future Pathways for the CNR Agenda ...... 38

III. Methodology ...... 41

Critical Discourse Analysis ...... 41 Discourse-Analytical Conceptual Framework ...... 42 Data Collection Methods ...... 43 Data Analysis Methods ...... 46

Conclusion ...... 48

Chapter 2 – Making Sense of Australia’s Political Response to Refugees and Asylum Seekers

Introduction ...... 49

I. Australia’s Invasion Anxiety and the Exclusion of the ‘Other’ ...... 50

Australia’s ‘Culture of Control’ over the Entry of Non-Citizens ...... 51 The Multicultural ‘Myth’ and the Ongoing Battle for ‘White Australia’ ...... 53 Australia’s ‘Pervasive Climate of Hostility’ towards IMAs ...... 54 The Social Construction of Asylum Seeker Discourses ...... 56 The ‘Liberal Paradox’ in Australia’s Treatment of Refugees and Asylum Seekers ...... 57

II. The Securitisation of Irregular Migration ...... 59

Barbaric Hordes, Criminal Deviants, and Unassimilable Outsiders ...... 60 The Humanitarianisation/Securitisation Nexus...... 63 The Politics of Compassion Rhetoric ...... 65

Conclusion ...... 67

Chapter 3 – A Historical Overview of Australia’s Refugee and Asylum Seeker Policies

Introduction ...... 69

I. The Normative Evolution of Australia’s Refugee Policy – 1945 to 1979 ...... 70

Arthur Calwell and the Expansion of Australia’s Immigration Program ...... 71 The Menzies Government and the Ratification of the Refugee Convention ...... 74 The Whitlam Government and the Fall of Saigon ...... 77 viii

The Fraser Government and the Introduction of Australia’s Humanitarian Program ...... 81

II. The (D)evolution of Australia’s Asylum Seeker Policy – 1980 to 2006 ...... 84

The Hawke Government and the Categorization of the ‘Illegal Entrant’ ...... 85 The Keating Government and the Introduction of Mandatory Detention ...... 89 The Howard Government and the ‘Pacific Solution’ ...... 93

Conclusion ...... 101

Chapter 4 – Hardline AND Humane? Australia’s Asylum Seeker Policy under the Rudd Government (2007-2010)

Introduction ...... 103

I. The Road to Kevin ‘07 ...... 104

The Rise of Kevin Rudd ...... 106 The 2007 Federal Election Campaign ...... 107

II. The First Rudd Government (2007 – 2010) ...... 110

‘[H]ard-line on people smugglers, humane on asylum seekers’ ...... 111 The Jaya Lestari 5 and Oceanic Viking Stand-offs ...... 114 The Rise of Tony Abbott ...... 118 ‘In the light of the changing circumstances…’ ...... 121

Conclusion ...... 128

Chapter 5 – For those in Peril on the Sea: Australia’s Asylum Seeker Policy under the Gillard Government (2010-2013)

Introduction ...... 129

I. The Road to the 2010 Federal Election ...... 130

The ‘Timor Solution’ ...... 132

II. The Gillard Government (2010 – 2013) ...... 135

A House Divided ...... 135 The Christmas Island Disaster ...... 138 The ‘Malaysia Solution’ ...... 141 The M70 Ruling and its Aftermath ...... 138 A ‘comprehensive policy failure’ ...... 144 The Expert Panel on Asylum Seekers ...... 147

III. The 2013 Federal Election ...... 156 ix

The Return of Rudd ...... 157

Conclusion ...... 161

Chapter 6 – The Politics of Norm Contestation

Introduction ...... 163

I. Australia’s Variable Historical Approach to Refugees and Asylum Seekers ...... 165

The Importance of an Overarching Political Objective ...... 166 Their Congruence with the Prevailing Socio-Political Climate ...... 168 The Contestation/Legitimation Nexus in Context ...... 169

II. The Politics of Compassion ...... 170

The Dynamic Interactions of Agents, Structures and Contexts ...... 170 The Politics of Rhetorical Coercion ...... 174 The Normalisation of the Drownings Argument in Public Discourse ...... 177 The Advent of a New Normative ‘Life-Cycle’ Process ...... 178

III. FRONTEX and the Humanitarianisation of the EUropean Border ...... 180

The Normative Evolution of Frontex ...... 181 The Hirsi Judgment ...... 185 The Lampedusa Tragedy and its aftermath ...... 186 ‘Frontex 2.0’ ...... 188 The Humanitarianisation/Securitisation Nexus: A Normative Perspective ...... 190

Conclusion ...... 191

Chapter 7 – Conclusion

Introduction ...... 193

I. The Politics of Norm Contestation (Revisited) ...... 194

The Agent-Structure-Context Nexus ...... 194 Norm Compliance within Liberal Democratic States...... 196 The Cyclical Nature of Normative Life Cycles ...... 197

II. A Refugee Convention for the ‘21st Century’? ...... 198

Conclusion ...... 199

Reference List...... 201

List of Acronyms and Abbreviations

AAFA Australian Adoptive Families Association

ACC Australian Council of Churches

ACHSSW Australian Council of Heads of School of Social Work

ACTU Australian Council of Trade Unions

ADF Australian Defence Force

AFSJ Area of Freedom, Security and Justice

AHRC Australian Human Rights Commission

ALP/Labor Australian Labor Party

ANA Australian Natives Association

ASEAN Association of Southeast Asian Nations

ASIAC Australian Society for Intercountry Aid Children

AWB Australian Wheat Board

AWU Australian Workers Union

Convention against Torture and Other Cruel, Inhuman or Degrading CAT Treatment or Punishment (1984)

CDA Critical Discourse Analysis

CEAS Common European Asylum System

CNR Critical Norm Research

CPA Comprehensive Plan of Action

CPRS Carbon Pollution Reduction Scheme

CRC Convention on the Rights of the Child (1989)

CRSS Community Refugee Settlement Scheme

Cth Commonwealth

DHA Discourse-Historical Approach Model xi

DIAC Department of Immigration and Citizenship

DIEA Department of Immigration and Ethnic Affairs

DIMIA Department of Immigration and Multicultural and Indigenous Affairs

DORS Determination of Refugee Status Committee

DPs Displaced Persons

EC European Commission

ECAJ Executive Council of Australian Jewry

ECHR European Convention on Human Rights

ECtHR European Court of Human Rights

EP European Parliament

ETS Emissions Trading Scheme

EU European Union

EU Charter Charter of Fundamental Rights of the European Union

EUNAVFOR Med European Union Naval Force Mediterranean

EUROSUR European Border Surveillance System

FECCA Federation of Ethnic Communities' Councils of Australia

FIDH International Federation for Human Rights

FRONTEX European Border and Coast Guard Agency (formerly European Agency for the Management of Operational Cooperation at the External Borders)

Global Financial Crisis GFC HIAS Hebrew Immigrant Aid Society

HoR House of Representatives

HREOC Human Rights and Equal Opportunity Commission

HRW Human Rights Watch

ICCPR International Covenant on Civil and Political Rights (1966)

ICEM Intergovernmental Committee for European Migration xii

IDPs Internally Displaced Persons

IMA Irregular Maritime Arrival

ICISS International Commission on Intervention and State Sovereignty

IOM International Organization for Migration

IRO International Refugee Organisation

JDC American Jewish Joint Distribution Committee

JOs Joint Operations

JSCM Joint Standing Committee on Migration Regulations

LNP/Coalition Liberal National Party

MoU Memorandum of Understanding

MP Member of Parliament

MRRT Minerals Resource Rent Tax

MSF Médicins Sans Frontières

NGO Non-Governmental Organisation

ODP Orderly Departure Program

OSB Operation Sovereign Borders

PNG Papua New Guinea

PRC People’s Republic of China

PM Prime Minister

RABIT Rapid Deployment Border Intervention Team

RAC Refugee Action Coalition

RCOA Refugee Council of Australia

REC Refugee Economic Corporation

Refugee Convention Convention Relating to the Status of Refugees (1951)

R2P Responsibility to Protect

RSA Refugee Status Assessment

RSL Returned Services League xiii

SAC Special Assistance Category

SAR Search and Rescue

SAS Australian Special Air Service

SBC Schengen Border Code

SHP Special Humanitarian Program

SIEV Suspected Irregular Entry Vessel/Suspected Illegal Entry Vessel

TEU Treaty on European Union

TFEU Treaty on the Functioning of the European Union

TFM Task Force Mediterranean

THB Trafficking in Human Beings

TPV Temporary Protection Visa

UDHR Universal Declaration of Human Rights (1948)

UKIP UK Independence Party

UN United Nations

UNGA United Nations General Assembly

UNHCR United Nations High Commissioner for Refugees

WAP White Australia Policy

WWF Waterside Workers’ Federation

Introduction

I. Research Problem

This thesis examines the crucial role that humanitarian arguments played in informing political and public debates on asylum seekers during the Prime Ministerships of Kevin Rudd and Julia Gillard (2007 – 2013). In October 2006, Rudd (who was vying for the leadership of the Australian Labor Party (ALP/Labor)) wrote an opinion piece in The Monthly where he declared his intention to take Australia’s asylum seeker policy in a more humanitarian direction. Drawing on the parable of the Good Samaritan, he argued that the Howard Government’s Pacific Solution1 was a “cause of great ethical concern” (Rudd, 2006a, p.29). Moreover, he maintained that Australia had a moral obligation to take a more compassionate stance on Irregular Maritime Arrivals (IMAs)2 because “[t]he biblical injunction to care for the stranger in our midst is clear” (Rudd, 2006a, p.29). After defeating the Liberal Party of Australia (LIB/Coalition) in the 2007 Federal Election, Rudd appeared to fulfil his campaign promise that his government would “comply with the letter and the spirit of the obligations Australia has voluntarily assumed by signing the Refugee Convention and other relevant international instruments” (Labor Party of Australia [ALP], 2007, s153; Evans, 2009). In addition to closing the offshore detention centres on Nauru and Manus Island, he abolished Temporary Protection Visas (TPVs), limited the use of mandatory detention, removed the 45-day rule which restricted asylum seekers’ rights to work and access health care, and cleared the accumulated detention debt of detainees (See Crock, 2010a; Millbank, 2009a; Billings, 2013).

However, by 2013, Labor’s humanitarian platform on IMAs had been largely abandoned. As the number of IMAs once again began to increase in 2009,3 both Rudd and his successor Gillard came under significant domestic pressure to provide an effective policy response to the boat arrivals. This task was further complicated by politically damaging maritime incidents such as the Oceanic Viking

1 The ‘Pacific Solution’ refers to the Howard Government’s decision in to introduce a number of legislative measures in October 2001 (see Chapter 3) in order to reduce the number of boat arrivals that were entering Australia’s territory. These included excising a number of surrounding territories from Australia’s migration zone, intercepting IMAs en route to Australia under Operation Relex, and processing asylum seekers in offshore detention centres on Nauru and Manus Island: J. Phillips, 2012. 2 The terms ‘asylum seeker,’ ‘IMA,’ ‘boat arrival’ and ‘irregular migrant’ will be used interchangeably throughout this thesis. While asylum seekers can comprise individuals that arrive by land, air and sea, the term tends to be applied exclusively to boat arrivals in the Australian context, while both political elites and media outlets have used of all the above terms when referring to asylum seekers. 3 Between 2009 and June 2013, a total of 737 boats carrying 44,156 people (excluding crew) entered Australia’s migration zone: J. Phillips & Spinks, 2013, p.23. 2 stand-off and Christmas Island disaster, an overburdened immigration detention system, and sustained opposition from the Coalition. These developments were soon accompanied by a growing current of opinion that Australia’s latest asylum seeker ‘crisis’ was primarily attributable to the “misguided humanitarianism” that had compelled Rudd to (partially) dismantle the Pacific Solution in 2008 (see for example Manne, 2014; Herold, Kortt & Dollery, 2016, p.242; Glendenning, 2015, p.32; P. Kelly, 2014, p.188). Numerous conservative media commentators and a number of high- profile refugee advocates agreed that in order to redress what had become Australia’s “most grievous failure of public policy” (Stewart, 2013b), the implementation of stronger border protection policies were both “ethically just and in policy terms necessary” (Sheridan, 2013; see also Manne, 2013; P. Kelly, 2014, p.397; Toohey, 2014; Packham, 2010). As the Tony Abbott-led Coalition intensified its ‘Stop the Boats’ campaign, Labor enacted a series of policy reversals that had the effect of gradually reintroducing the Pacific Solution (Katharine Murphy & Grattan, 2010; Francis & Caton, 2011, p.172; J. Phillips & Spinks, 2013).4 Despite Rudd’s announcement in July 2013 that no boat arrivals would be allowed to resettle in Australia even if they were found to be genuine refugees (Rudd, 2013a), Labor’s politically contentious six years in office came to an end when it was comprehensively defeated by the Coalition in the 2013 Federal Election.

Research Question/s

Based on these considerations, the main research question that I will address in this thesis is:

Why was the Rudd Government’s attempt to take Australia’s asylum seeker policy in a more humanitarian direction in 2007 unable to be sustained?

On the surface, both the causes and consequences of Rudd’s humanitarian platform on asylum seekers appear to be readily apparent. A number of scholars have argued that Rudd’s concern for the ‘vulnerable stranger’ was short-lived because it had constituted nothing more than a strategic ploy to differentiate his asylum seeker policy from Coalition leader John Howard’s during the 2007 Federal election. As a result, it was quickly discarded when the abovementioned domestic constraints had rendered it increasingly politically untenable to maintain (P. Kelly, 2014: 178; Crock, 2010a, p.2; Toohey, 2014, p.20; G. Martin, 2015, p.307; Millbank, 2009a, p.8). They further point out that Rudd’s retention of both mandatory detention and offshore processing and subsequent pledge to take a hardline stance on ‘illegal immigration’ reflected his ongoing commitment to deter IMAs from reaching Australia’s shores (Manne, 2015; Stats, 2017) Therefore, Labor’s policy changes were, according to these analyses, of relatively peripheral importance because they did not alter the

4 See Chapters 4 and 5 3 foundations of the deterrence-based policy framework that has informed Australia’s asylum seeker policy since 1989 (J. Phillips, 2014, p.3; Fleay, 2011, p.4; Stats, 2017, pp.122-123).

The argument that Rudd’s compassion rhetoric was of limited practical significance because it had failed to increase Australia’s compliance with its international obligations to asylum seekers5 is amply supported by the available evidence. Nevertheless, the attendant notion that it had “no lasting effect on the political narrative” (Stats, 2017, p.109) is less compelling when subjected to rigorous empirical analysis. As this thesis will demonstrate, humanitarian arguments that were centred on competing notions of morality, compassion and felt normative obligation played a central role in informing the asylum seeker debate between 2007 and 2013 (and beyond). While these debates led to a renewed bipartisan consensus that the Pacific Solution constituted the most appropriate mechanism for preventing IMAs from reaching Australia’s shores, the reasoning that accompanied its reintroduction was markedly different from the exclusionary rhetoric that had accompanied its initial implementation in 2001. Therefore, the ancillary question of why both Labor and the Coalition used humanitarian arguments in order to fortify their respective positions on the issue provides a more appropriate basis from which Labor’s retreat from its humanitarian stance on asylum seekers can be effectively assessed.

The importance of providing a comprehensive answer to these research questions is further reinforced by the fact that they have only been partially addressed within contemporary analyses that examine Australia’s asylum seeker policy during the Rudd/Gillard era. By primarily focusing on the practical consequences of Labor’s policy changes, the analytical puzzle that arises from Rudd’s decision to challenge the normative status quo on asylum seekers at a time when the issue did not dominate the political discourse remains underexplored. In 2001, the ‘Tampa Crisis’ and 9/11 terrorist attacks had brought the issue to the forefront of Australia’s security agenda.6 The subsequent implementation of the Pacific Solution led to a dramatic decrease in boat arrivals, with only 276 IMAs managing to reach Australia’s territory between 2002 and 2007 compared to the 12,429 that arrived between 1997 and 2002 (J. Phillips & Spinks, 2013b, p.23). Therefore, Rudd’s public declaration of support for asylum seekers appeared to be both counterintuitive and politically risky in that it eschewed at least two decades of established practice on the issue. However, rather than engendering a hostile domestic reaction, Rudd’s compassionate stance on IMAs was not only favourably received by a significant proportion of the Australian public, but also faced relatively little political resistance during Labor’s first year in office. Human rights lawyer Julian Burnside attributes this ideational shift to the fact that

5 For a detailed analysis of what these obligations entail, see Part II of this chapter. 6 For a more detailed analysis of these events, see Chapter 3. 4

“abusing asylum seekers was no longer a good look” (Burnside, 2014, p.13), but this assessment does not elucidate why Australia’s socio-political environment appeared to be more amenable to Rudd’s political message on asylum seekers at that specific time.

Second, there is a tendency within these contemporary analyses to maintain that the reintroduction of the Pacific Solution in 2013 reflected the continued primacy of exclusionary narratives that portray IMAs as the threatening ‘Other’ as the key drivers of Australia’s asylum seeker policy (Grewcock, 2014; Pickering & Weber, 2014; Glendenning, 2015). As a result, the question of why concerns over their welfare became a central feature of the asylum seeker debate during this period has not been fully addressed. During the 2010 Federal Election campaign, Abbott primarily relied on alarmist rhetoric in order to support his claim that “[o]nly the Coalition knows how to stop the boats” (Abbott, 2010j). However, over the next three years, both Abbott and his Immigration Minister Scott Morrison increasingly drew on ‘pro’ asylum seeker narratives in order to reinforce the Coalition’s position that Labor’s asylum seeker policy was both ineffective and inhumane. While the primary purpose of these humanitarian arguments was to provide a justificatory basis for the reintroduction of the Howard Government’s border protection regime, the fact that they were couched in victim-centric terms demonstrates that exclusionary narratives only constituted one facet of the asylum seeker debate during this period. Therefore, a more multifaceted analysis of the full spectrum of arguments that were used by political elites in order to contest the domestic applicability of international asylum seeker norms7 between 2007 and 2013 is both warranted and necessary.

Contribution to Knowledge

In order to address these existing knowledge gaps, I conducted a normative analysis of how the asylum seeker issue was contested in both the political and public spheres during the Rudd/Gillard era. One of the central claims that will be made is that irrespective of whether it was driven by political or altruistic motives, Rudd’s publicly expressed support for the ‘vulnerable stranger’ altered the parameters of the asylum seeker debate in both the political and public spheres. By arguing that the fundamental human rights of IMAs were being systematically violated under the Pacific Solution and that Australia had to do its “fair share for those who are subject to persecution” (ALP, 2007, s150), Rudd engendered a normative shift on the issue. Moreover, by asserting that Australia’s international obligations under the 1951 Convention Relating to the Status of Refugees (Refugee Convention) and associated human rights instruments also applied to IMAs, Rudd directly challenged the rationale that has underpinned Australia’s bifurcated policy framework on refugees and asylum seekers since 1980.

7 The most commonly cited definition of an international norm comes from Finnemore and Sikkink, who describe them as “a standard of appropriate behavior for actors with a given identity”: Finnemore & Sikkink, 1998, p.891. 5

While his ability to engender a normative shift on IMAs depended on the presence of a more amenable socio-political environment, it was the specific contextual matrix within which these debates took place that paved the way for Labor to increase Australia’s compliance with international asylum seeker norms in 2007.

By acknowledging that Australia’s asylum seeker policy is both dynamic and context-specific, this thesis aims to make a contribution to both the empirical literature on Australia’s asylum seeker policy and the theoretical literature on norm contestation. First, it will challenge accounts that emphasise that Australia’s asylum seeker policy framework has historically been underpinned by a strong bipartisan consensus that IMAs pose an existential threat to Australia’s ‘way of life.’ While successive Australian governments since 1980 have sought to diminish the validity of asylum seeker claims by characterising them as criminal deviants, economic opportunists and ‘queue jumpers,’ this thesis will demonstrate that this pattern is neither pre-determined or immutable. In the seven decades since Australia ratified the Refugee Convention, the domestic ‘meaning-in-use’8 of international asylum seeker norms has not remained static, but has rather fluctuated and evolved in response to agent-driven, structural and context-specific changes. This acknowledgement in turn provides the necessary scope for examining the crucial role that humanitarian arguments played in influencing the trajectory of Australia’s asylum seeker policy during the Rudd/Gillard era.

Second, it will identify and address conceptual gaps within the constructivist literature on the normative life-cycle by engaging with the more recent critical constructivist scholarship on Critical Norm Research (CNR). By developing a discourse-analytical conceptual framework for examining how the contestation process “re-/enact[s] the normative structure of meaning-in-use at any time” (Wiener, 2014, p.viii), it will provide the requisite methodological tools for elucidating how Rudd’s opponents strategically used humanitarian arguments in order to de-legitimise both the moral and practical foundations of Labor’s asylum seeker policy. As Part II will demonstrate, Labor’s policy shift on asylum seekers in 2007 and its subsequent repudiation cannot be fully understood or put into relevant context without first developing a comprehensive understanding of how international norms are interpreted and subsequently contested at the domestic level.

8 According to Antje Wiener, the term “meaning-in-use” encapsulates the fact that while “a norm such as human rights may be agreeable within an international negotiating setting…the actual meaning of this norm may differ in the actual contexts of norm implementation”: Wiener, 2009, p.177. 6

II. The International Normative Regime on Refugees and Asylum Seekers: Principle versus Practice

Over the last three decades, the notion that “international norms matter in world politics” has engendered significant debate among international relations (IR) scholars (A. Betts & Orchard, 2014, p.1; Risse & Ropp, 2013, p.9). Norms, which Finnemore and Sikkink describe as “standard[s] of appropriate behavior for actors with a given identity” (Finnemore & Sikkink, 1998, p.891), regulate the behaviour of agents by “specif[ying] actions that are required, permissible, or forbidden independently of any legal or social institution” (Dubreuil & Grégoire, 2013, p.138). International norms, meanwhile, have the added effect of prohibiting, sanctioning and legitimating state practices (Farrell, 2002, p.50; Contessi, 2010, p.325; Besson, 2015, 32-33). The ubiquitous influence of international norms is purportedly demonstrated by the fact that in the twenty-first century, “[v]irtually every state has ratified at least one of the United Nations’ [core] instruments [while] 80 per cent of states have ratified four or more” (Karlsson, Follesdal & Ulfstein, 2015, p. 1; Hafner- Burton, Tsutsui & Meyer, 2008, 116).

Despite these positive developments, Chapter 1 will demonstrate that there continues to be a fundamental tension between the legal norms that proscribe the actions of states, and the social norms that prescribe standards of appropriate behaviour. Legal norms are given effect when they are institutionalised into a state’s domestic legislative framework, while social norms comprise the normative boundaries that individuals and groups apply in order to determine the moral validity of values, beliefs, attitudes and practices (Dechesne, Dignum & Tan, 2011, p.52; Brunnée and Toope, 2013, p.119). However, while legal norms can “help to clarify what is morally sought,” human rights norms constitute extra-legal concepts that often “exten[d] beyond what the system of law in a country recognizes as rights” (Sen, 2012, p.251). The dilemma that arises when international normative regimes that accord fundamental rights to specific target groups are deemed to be incompatible with either the legal or social norms that comprise a state’s national identity in turn forms the theoretical basis of the empirical puzzle that this thesis will seek to address.

As a set of prescriptive rules that are specifically aimed at protecting the world’s most vulnerable people from state-sponsored persecution, the international normative regime on refugees appears to be a prime example of a human rights-based norm that has attained the status of being ‘universally applicable.’ Both the 1951 Refugee Convention and 1967 Additional Protocol have been ratified by a significant proportion of the world’s states (United Nations High Commissioner for Refugees 7

[UNHCR], States Parties to the 1951 Convention, n.d.),9 while Australia has also taken active steps to incorporate some of its key provisions into its domestic policy framework (see below). In addition to welcoming over 800,000 refugees since 1945, it allocates a pre-determined annual quota for refugee resettlement under its Humanitarian Program,10 consistently making it one of the top three resettlement countries in the world.11

Nevertheless, the introduction of the Humanitarian Program by the Fraser Government in 1977 also had the effect of bifurcating Australia’s refugee policy into two separate normative frameworks. In the four decades since its inception, the Australian government has consistently acknowledged that it owes protection obligations to UNHCR-recognised refugees. Yet despite this, both the Hawke/Keating and Howard governments responded to periodic increases in boat arrivals in 1989 and 1999 by implementing a deterrence-based asylum seeker policy framework that is centred on the key pillars of mandatory detention, offshore processing, and limited judicial review (Mansouri, Leach & Nethery, 2009, p.136; Howard, 2003, p.37; Pert, 2014, p.162; McAdam & Purcell, 2008, 93-94). While it receives only a fraction of the world’s asylum seekers,12 Australia has taken active steps to curtail their right to claim asylum in Australia. This dichotomous approach to refugees and boat arrivals has in turn created a two-tiered system where policy makers have consistently maintained that the legal principles that are contained in the Refugee Convention and associated human rights instruments do not supersede the policy norms that comprise its domestic policy framework on asylum seekers norms.

Australia may have one of the most restrictive asylum seeker policies in the world, but it is also far from unique. Over the last three decades in particular, more states have implemented hardline border protection policies on the basis that irregular migration movements threaten their sovereign right to determine who enters their respective territories (Gibney, 1999, p.169; Parekh, 2014; Heller & Kahl, 2013, p.416; Liese, 2009, p.19). Their consistent failure to fulfil their normative obligations to asylum seekers in turn forms part of a broader pattern that has witnessed increasingly prolific violations of international human rights norms by authoritarian and liberal democratic states alike (Risse & Ropp, 2013, p.4). As the next section will demonstrate, this phenomenon is at least partially attributable to the fact that while the Refugee Convention contains a “comprehensive codification of the rights of

9 The 1951 Refugee Convention currently has 145 member states, while the 1967 Protocol has 146. Australia acceded to the 1951 Refugee Convention on 22 January 1954, and to the 1967 Additional Protocol on 13 December 1973. 10 Australia has four offshore refugee visa categories, including Refugee (subclass 200), In‐Country Special Humanitarian (subclass 201); Emergency Rescue (subclass 203) and Woman at Risk (visa subclass 204). 11 In 2015, Australia resettled a total of 5,211 refugees, ranking only behind Canada (10,236) and the United States (52,583): Karlsen, 2016, p.6. See also J. Phillips, 2017, p.1. 12 In 2017, the United States received the highest number of new asylum applications (331,700), followed by Germany (198,300) and Italy (126,500), while Australia ranked 11th with 36,200 applications: UNHCR, 2018a, p.41. Between 2005 and 2015, the 139,398 refugees that were recognised and resettled by Australia accounted for just 0.99% of the global total of 14,129,593: Refugee Council of Australia [RCOA], 2016. 8 refugees at the international level” (Refugee Convention, p.3), it also offers relatively limited protections to asylum seekers whose refugee status has yet to be verified. While it has since “been supplemented [by] the progressive development of international human rights law” (Refugee Convention, p.2), these unenforceable provisions have not led to a corresponding increase in state- based compliance with international asylum seeker norms.

Defining the Scope of State Obligations to Asylum Seekers

Article 1A(2) of the Refugee Convention states that a person qualifies as a refugee if they have a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion,” reside outside of the country of his/her nationality, and are either unable or unwilling to return to their country of origin. The fulfilment of this narrow criteria in turn triggers the corresponding responsibility of Contracting States to provide refugees with a range of human rights protections. These protections include the freedom to practice their religion (Article 4), acquisition and retention of property (Article 13), right of association (Article 15), access to national courts (Article 16), right to gainful employment (Articles 17-19), access to welfare (Articles 20-24), and freedom of movement within the state’s territory (Articles 26-28).

In principle, the Refugee Convention comprises a comprehensive protection regime for individuals that have successfully proven that they are fleeing from state-sponsored persecution. Nevertheless, states continue to challenge the notion that their protection obligations extend to asylum seekers whose status has yet to be verified (Bem, Field, Maclellan, Mayer & Morris, 2007, p.10). There are two key provisions that are considered to pertain to both refugees and asylum seekers under the Refugee Convention. Article 31 prohibits states from imposing penalties “on account of their illegal entry or presence” (provided that they had come directly from a territory where their life or freedom was threatened) (Article 31(1)). Article 33 prevents states from returning (‘refouler’) refugees to territories where they would face persecution (Article 33(1)). While it is now generally accepted that the non-refoulement principle has attained the status of jus cogens in that states have a non-derogable obligation to comply with it (Allain, 2001), this does not apply to the other human rights protections that are generally considered to pertain to asylum seekers.

This fact becomes readily apparent when one considers the efficacy of the broader range of human rights protections that are contained in the core United Nations (UN) human rights conventions. Article 14 of the Universal Declaration of Human Rights (UDHR) enshrines the right to asylum as a fundamental principle of customary international law. Other relevant provisions are also contained in the 1966 International Covenant on Civil and Political Rights (ICCPR), the 1984 Convention against 9

Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), and the 1989 Convention on the Rights of the Child (CRC). These include the prohibition on the use of arbitrary detention (UDHR, Article 9; ICCPR, Articles 9(1), 10(1) & 11; CRC, Articles 37(b)-(c)), prohibition on cruel, inhuman or degrading treatment or punishment (UDHR, Article 5; ICCPR, Article 7; CAT, Article 1; CRC, Article 37(a)), the right to have equal access to the courts and entitlement to a prompt and fair hearing (UDHR, Article 7; ICCPR, Articles 9(3) & 14)), and the right to move freely within the borders of each state (UDHR, Article 13). In addition, Article 3 of the CAT prohibits the expulsion of a person to another state where they would be in danger of being subjected to torture (CAT, Article 3(1)), while Article 22 of the CRC states that “a child who is seeking refugee status [shall] receive appropriate protection and humanitarian assistance” (CRC, Article 22(1)).

Taken together, these provisions are aimed at strengthening the normative basis of asylum seeker claims by creating a robust system of complementary protection. However, the notion that these mechanisms are robust enough to compel states to adhere to them is not supported by the evidence (Karlsen, 2009; McAdam, 2008; Raveendran, 2012, p.1290, Burnside, 2007, p.23). The United Nations High Commissioner for Refugees (UNHCR) global statistics database shows that while there were 17.54 million ‘persons of concern’13 in 1990, that number had risen to 33.92 million in 2010 and to a record 71.44 million by 2017 (UNHCR, UNHCR Statistics, n.d.). In addition, the 2016 UNHCR Global Trends report found that 84% of the world’s refugee population were being hosted by developing countries (UNHCR, 2017, p.2). Rather than adjusting their domestic policy frameworks in order to accommodate them, many industrialised liberal democratic states continue to frame the act of asylum seeking “as a political issue by using a range of indiscriminate deterrent and preventative measures to reduce the ﬂow of applicants to their frontiers where they could claim asylum” (Gibney, 2004, p.11).

This point is aptly demonstrated by the fact that while Australia has incorporated Article 1A(2) and 33 domestically under the Migration Act 1958 (Cth),14 its domestic policy framework on asylum seekers has frequently come into conflict with its legal obligations under both the Refugee Convention and associated human rights instruments (Paul, 2014, pp.209-210; McMaster, 2002a, p.279; Gibney, 2004, p.166; Vas Dev, 2009, p.43). First, a number of scholars have pointed out that the Australian government’s policy of penalising IMAs for their mode of entry by detaining them in offshore

13 That number includes refugees, asylum seekers, internally displaced persons (IDPs), returnees, stateless persons and ‘others.’ 14 Section 36(2)(a) stipulates that a person may apply for a protection visa “if the Minister is satisfied Australia has protection obligations because the person is a refugee,” while section 36(2)(aa) states that these obligations may also be invoked if the Minister has substantial grounds for believing that there is a “real risk that the non-citizen will suffer significant harm” if they are removed from Australia to a receiving country. 10 detention centres15 constitutes a potential breach of Article 31 of the Refugee Convention (Archbold, 2015, p.151; McAdam & Purcell, 2008, p.110; Spinks & McCluskey, n.d). Second, critics of Australia’s (potentially indefinite) mandatory detention policy16 have argued that it violates the prohibitions against arbitrary detention and cruel, inhuman or degrading treatment and punishment (McPhail, Nyamori & S. Taylor, 2016, p.648; Creek, 2014, p.485; S. Taylor, 1998, pp.8-10; Saul, 2012, pp.15-16; Dastyari, 2015, pp.689-691). Finally, the efforts of successive Australian governments to curtail legal avenues of appeal have been cited for violating the right of asylum seekers to have the lawfulness of their detention promptly reviewed before a court (Fleay & Hoffman, 2014, p.10; Raveendran, 2012, p.1285).

Despite being subjected to criticism from international bodies such as the United Nations (UN), transnational organisations such as Amnesty International, and domestic refugee advocacy networks for breaching its international obligations to asylum seekers (Human Rights Law Centre, 2015; Doherty, 2016; Amnesty International, 2018), Australia has remained adamant that “we will decide who comes to this country and the circumstances in which they come” (Howard, 2001c). However, the next section will demonstrate that the fact Rudd not only acknowledged these breaches but subsequently pledged to redress them in 2007 necessitates a more expansive account of how the norm contestation process shapes the domestic meaning-in-use of international norms at specific points in time.

International Norm Dynamics and Domestic Change

Chapter 1 of this thesis engages with both the constructivist literature on the normative life-cycle and the more recent critical constructivist literature on norm contestation. In the late 1990s, a number of constructivist scholars developed conceptual models for determining the conditions under which authoritarian states could be ‘socialised’ into incorporating international human rights norms into their respective domestic frameworks. Finnemore and Sikkink’s ‘Life-Cycle’ model (1998) and Risse et al’s ‘Spiral’ model (1999) both posited that recalcitrant states would change their norm violating behaviour after being subjected to sustained pressure from norm entrepreneurs, transnational advocacy networks and international organisations (Finnemore & Sikkink, 1998, p.895; Risse & Sikkink, 1999; Acharya, 2004, p.242). However, these models soon came under sustained criticism for distilling the process of norm emergence, international diffusion and domestic implementation into fixed and sequential stages. By assuming that the contestation phase was dispensed with

15 Section 189(1) of the Migration Act 1958 (Cth) states that “[i]f an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.” 16 Section 196 of the Migration Act 1958 (Cth) states that a person must be kept in immigration detention until they either receive a valid visa or are removed or deported from Australia. 11 relatively early in the normative life-cycle, neither models were able to explain why many international norms continue to be subjected to “a considerable degree of contestation” during the domestic implementation phase (and beyond) (Wiener, 2007, p.2).

In order to address these theoretical gaps within the normative life-cycle literature, this thesis engages with the more recent stream of critical constructivist scholarship that is generally referred to as Critical Norm Research (CNR). According to prominent CNR scholar Antje Wiener, norms “always remain flexible by definition” because they are “both structuring and socially constructed through interaction in a context” (Wiener, 2014, p.27). As a result, international norms are constantly being (re)interpreted at the domestic level by multiple stakeholders with often divergent understandings of normative appropriateness that are operating within constantly evolving socio-political environments (Deitelhoff & Zimmerman, 2013, Welsh, 2013, 380; Sandholtz, 2009, 6; Sikkink, 2013, 148). These considerations in turn form the methodological basis for the discourse-analytical conceptual framework that I have developed in order to give practical effect to the central CNR contention that normative change is driven by the mutually constitutive interactions of agents, structures and relevant contexts.

First, I utilise Wodak and Weiss’s Discourse-Historical Approach (DHA) model in order to assess both the immediate impact and broader socio-political implications of humanitarian arguments on the asylum seeker debate during the Rudd/Gillard era (Wodak & Weiss, 2003, p.22). Second, I draw on Van Leeuwen’s political legitimation framework and Krebs and Jackson’s work on rhetorical coercion in order to gain a better understanding of why both Labor and the Coalition used humanitarian arguments in order to justify their respective asylum seeker policies (Van Leeuwen, 2007, p.92; Krebs & Jackson, 2007; see also see also Reyes, 2011). While both Rudd and Abbott maintained that their publicly expressed concerns for ‘vulnerable’ asylum seekers were informed by the overarching goal of protecting them from harm, they also had the specific purpose of manoeuvring their opponents into a corner by demonstrating that their policies were both impractical and inhumane. As the next section will demonstrate, the strategic use of humanitarian arguments for coercive purposes adds another layer of complexity to existing accounts that contend that domestic debates on the issue have consistently been informed by long-standing narratives of deterrence and exclusion.

III. The Domestic Contestation of International Asylum Seeker Norms in Australia

The question of why Australia, a consolidated liberal democracy that has actively sought to distance itself from its racially discriminatory past in order to embrace a more cosmopolitan identity, has taken 12 such a hardline stance against asylum seekers has engendered a large body of scholarship. In order to provide an explanation for this vexing phenomenon, many scholars have pointed that Australia’s long-standing fear of the ‘Other’ constitutes the primary driver of Australia’s hostile response to boat arrivals. While these analyses provide a comprehensive overview of how the issue has been contested in Australia, this section will demonstrate that they do not fully take into account the entire spectrum of arguments that have been used in order to challenge the domestic applicability of international asylum seeker norms.

Sovereign Borders, Threatening ‘Others’ and ‘Fair’ Queues

In Chapter 2 of this thesis, I outline the themes, narrative patterns and key arguments that scholars have identified in order to provide an explanatory framework for why Australian policy makers have generally opted to adopt a hardline approach to boat arrivals. The most prominent theme that emerges from many of these analyses is that Australia’s enduring ‘invasion anxiety’ and lengthy history of racial discrimination has fostered a strong bipartisan consensus that IMAs constitute the threatening ‘Other’ that must be deterred from reaching Australia’s shores (Vas Dev, 2009, p.36; A. Burke, 2008; Edgar, 2013; O’Doherty & Augoustinos, 2008, p.577; Lamey, 2011, p.237; M. Welch 2014; Crock & Ghezelbash, 2010, p.248; Devetak, 2004; Billings, 2011; Driver, 2011; Saul, 2012). By negatively portraying IMAs as criminal deviants, economic opportunists and undeserving ‘queue jumpers,’ successive Australian governments have created a “pervasive climate of hostility” against asylum seekers by harnessing already entrenched hostile public attitudes on the issue (Fozdar & Pederson, 2013, p.372; McKay, Thomas & Blood, 2012; Kampmark, 2006; Lueck, Due & Augoustinos, 2015; Mummery & Rodan, 2003; Gale 2004, pp.321-322). These domestic variables have in turn engendered a policy framework that has been consistently underpinned by long-standing narratives of deterrence and exclusion.

These analyses present a comprehensive account of both the historical origins and practical consequences of Australia’s hardline approach to boat arrivals. However, by maintaining that exclusionary narratives constitute the primary drivers of the asylum seeker debate, there is a resulting tendency to accord a peripheral status to humanitarian arguments within the dominant securitised discourse on IMAs. On the one hand, the strategic use of compassion rhetoric in order to diminish the normative claims of IMAs has been readily acknowledged by scholars. By unfavourably comparing ‘genuine’ refugees who use the ‘proper channels’ with ‘illegal’ IMAs who employ the services of people smugglers in order to invoke Australia’s protection obligations, political elites have perpetuated the view that asylum seekers are antithetical to the values of ‘fairness’ and ‘decency’ that 13 comprise its national identity (Rowe & O’Brien, 2014; Creek, 2014, p.486; Pedersen, Watt & Hanser, 2006, p.114; Mummery & Rodan, 2007, p.351; Every, 2008, pp.219-220). As a result, there is a prevalent view within the contemporary literature that the primary purpose of Rudd’s rearticulated binary between ‘criminal’ people smugglers and ‘vulnerable’ asylum seekers was to ensure that they “remained delegitimised through judgements made of their deservingness” (McKenzie and Hasmath, 2013, pp.420-421; Manderson, 2013, p.4; Peterie, 2017, p.361; Muytjens & Ball, 2016, p.456; Crock and Ghezelbash, 2011, p.102). However, I argue that these accounts do not explain why both Labor and the Coalition increasingly used humanitarian arguments in order to justify their positions on the issue during the Rudd/Gillard era.

In order to subject these arguments to empirical analysis, Chapter 3 will examine the historical evolution of Australia’s asylum seeker policy since 1945. It will demonstrate that while Australia has maintained a stringent ‘culture of control’ over the entry of non-citizens since 1945, its political response to refugees and asylum seekers has been both variable and context-specific. The Chifley government’s post-World War Two (WWII) expansion of Australia’s restrictive immigration was primarily motivated by economic and security considerations (Richards, 2008, p.132). However, the subsequent resettlement of over 460,000 migrants (including non-British and Jewish refugees) between 1947 and 1951 also had the unintended consequence of diversifying Australia’s racially homogenous demographic (Holbrook, 2016, p. 32). The resultant domestic dissatisfaction with Australia’s White Australia Policy (WAP), when combined with the Menzies government’s desire to project a more cosmopolitan image in the international arena, facilitated both the ratification of the Refugee Convention in 1954 and removal of the racially discriminatory dictation test under the Migration Act (Australia leader in refugee resettlement, 1959; Commonwealth [HoR], 1959, 1-4). By the mid-1970s, the notion that Australia’s protection obligations extended to non-European refugees had become normalised enough to enable the Fraser government to successfully promulgate its message that Australia should treat Indo-Chinese refugees with compassion (Steketee, 2009a).

While the introduction of the Humanitarian Program in 1977 reinforced the notion that Australia’s normative obligations to refugees were non-derogable (if highly conditional), it also split Australia’s refugee policy into two separate frameworks. Refugees that “migrate[d] in the normal way” were offered resettlement places under pre-determined quotas, while more restrictive policies were enacted for asylum seekers that used irregular pathways in order to reach Australia’s shores. In 1989, the Hawke Government created a legislative basis for the classification of IMAs as ‘illegal entrants’ (Commonwealth [Senate], 3 May 1989, p.1680; Migration Legislation Amendment Bill 1989 (Cth)) while the Keating Government followed suit by introducing Australia’s mandatory detention policy 14 and curtailing judicial avenues of appeal for adverse refugee assessments (Migration Amendment Act 1992 (Cth); McAdam & Purcell, 2008, pp.93-94; Garnier & Cox, 2012). When John Howard was elected in 1996, he harnessed the growing public resentment against boat arrivals by questioning Australia’s multicultural identity and restricting the right of IMAs to apply for protection visas (McAdam & Purcell, 2008). The third ‘wave’ of IMAs in 1999 not only heightened domestic fears over their arrival, but also enabled Howard to capitalise on both the ‘Tampa Crisis’ and 9/11 attacks in 2001 order to reinforce the perception that IMAs posed an existential “threat to the core values” that underpinned Australia’s national identity (Gale, 2004, pp.321-322; McDonough & Pringle, 2013, p.95).

The above summary affirms that there has historically been a clear demarcation between Australia’s relatively generous treatment of refugees and increasingly hardline response to boat arrivals. Nevertheless, it also reinforces the central CNR contention that normative change is directly attributable to the mutually constitutive interaction of agents, structures and relevant contexts. Based on these considerations, the key preliminary finding in Chapter 3 is that there are three key determinants for accounting for variations in Australia’s compliance with international refugee and asylum seeker norms. These include (1) the extent to which political elites link their normative positions to an overarching political objective; (2) their level of congruence with the prevailing socio- political climate; and (3) the degree to which these normative positions are perceived to be legitimate in both the political and public spheres. As the next section will demonstrate, these findings have significant implications for the present case study by providing a more multifaceted analytical foundation for examining both the conditions that facilitated Labor’s normative shift on IMAs in 2007 and the factors that led to its subsequent repudiation.

Australia’s Asylum Seeker Policy under the Rudd/Gillard Government

Chapter 4 examines Australia’s asylum seeker policy during the first Rudd Government (2007-2010). I will demonstrate that Rudd’s ability to engender a normative shift on asylum seekers in 2007 depended on both his ability to de-legitimate the normative position of his political opponent John Howard and the presence of a more amenable socio-political environment. By arguing that the Pacific Solution was prohibitively expensive and morally reprehensible, Rudd was able to capitalise on the growing public consensus that Howard’s policies no longer reflected current standards of normative appropriateness while also strengthening his overarching political message that he was fiscally conservative and socially progressive (Burnside, 2014, p.13; P. Kelly, 2014, p.178; Pastore, 2013, p.621). In the process, he turned Howard’s erstwhile political strengths in the policy areas of the 15 economy and immigration into crippling weaknesses while fortifying Labor’s argument that the Coalition was “tired, bereft of ideas, and ill-prepared for the coming years” (Williams, 2008, p.105; Dyrenfurth & Bongiorno, 2010, pp.186-187; Kefford, 2013, p.137; Aldworth, 2008-9, p.53).

During its first year in office, the Rudd Government largely honoured its election promise to end offshore processing on Nauru and Manus Island and to scale back Australia’s immigration detention network. However, Rudd also retained the processing facility on Christmas Island, while mandatory detention remained a key pillar of Labor’s asylum seeker policy framework (Evans, 2008; Landrigan, 2010, p.214; Crock, 2010a, p.2; Fleay, 2011, p.3; Brett, 2007; Millbank, 2009, p.10). In order to demonstrate that his policy would be would be both ‘hardline and humane,’ Rudd reframed the existing binary between ‘genuine’ refugees and undeserving ‘queue jumpers’ to ‘vulnerable’ asylum seekers that needed to be protected from ‘evil’ people smugglers (Rodgers, 2009a; Briskman, 2013, p.10; Cameron, 2013, p.242; Peterie, 2017, pp.357-358). In the process, he not only rearticulated the normative boundaries of the asylum seeker debate, but also altered the domestic meaning-in-use of international asylum seeker norms. However, while Labor’s policy changes had the (short-term) effect of conflating Australia’s bifurcated policy framework by extending Australia’s treaty-based obligations to IMAs, they also prompted the Coalition to refine its own political message by increasingly appropriating humanitarian arguments for their own strategic purposes (Commonwealth [HoR], 20 October 2009, p.10353).

When Tony Abbott became Opposition leader in December 2009, the strategic use of compassion rhetoric became an increasingly prominent component of the Coalition’s political response to the asylum seeker issue. In order to strengthen his ‘Stop the Boats’ campaign, Abbott increasingly drew parallels between Rudd’s (partial) dismantling of the Pacific Solution and recent increases in the number of IMAs that had drowned en route to Australia. The ‘drownings argument’ in turn provided a rhetorical platform for Abbott to de-legitimise both pillars of Rudd’s ‘hardline and humane’ approach by arguing that his policies were both impractical and inhumane (Murphy, 2015; Ryan, 2013; Muytjens & Ball, 2016, p.456; Burnside, 2014, p.12; de Lint and Giannacopoulos, 2013, p.624; Little & Vaughn-Williams, 2016, p.17; G. Menzies, 2015, p.231). In the wake of the Jaya Lestari 5 and Oceanic Viking stand-offs, Rudd attempted to mitigate the politically damaging fallout by stating that he made “no apology whatsoever” for taking a hardline stance on “illegal immigration” (Rudd, 2009e). In response, the Coalition pointed to the overcrowded Christmas Island detention facility in order to support its claim that Rudd’s policies were “hypocritical, misleading and inhumane” because children were once again being held behind ‘razor wire’ (Commonwealth [HoR], 26 October 2009, pp.11049). These arguments were in turn accompanied by a growing domestic consensus that Rudd 16 had failed to fulfil his election promise to protect Australia’s sovereign borders while treating IMAs with compassion (Flitton, 2010a; McAdam & Murphy, 2010; Coorey, 2010a).

Chapter 5 focuses on the efforts of Rudd’s successor, Julia Gillard, to formulate a durable policy solution to the continued increases in IMAs. In order to distance herself from her predecessor’s policy failures, Gillard argued that Australians had a right to be concerned over boat arrivals and called for a “frank, open [and] honest” discussion on the issue (Gillard, 2010e). However, when Abbott was narrowly defeated during the 2010 Federal Election, the Coalition began to diversify its use of compassion rhetoric in order to neutralise the effectiveness of the Labor-Greens alliance. After the Christmas Island disaster in December 2010 thrust the drownings argument firmly into the public spotlight, there was a growing domestic consensus that stronger border protection measures were necessary in order to prevent further tragedies at sea (Briskman, 2013; Albrechtsen, 2010b; Carney, 2010b). As a result, the Coalition became increasingly fervent in challenging the Gillard government’s attempts to formulate a ‘regional solution’ on boat arrivals. When the High Court rejected the ‘Malaysia Solution’ in 2011 on the basis that it was not a party to the Refugee Convention, the Coalition portrayed it as a vindication of its argument that offshore processing on Nauru was more humane because IMAs would receive “Australian style human rights” there (Commonwealth [HoR], 26 May 2011, p.4839). These arguments were further strengthened when a number of high-profile refugee advocates began to publicly repudiate their erstwhile opposition to the Pacific Solution on the basis that it was “easily the lesser of two evils” (Ozdowski, 2011; Karvelas, 2011; Franklin, Vasek, Kelly & Massola, 2011).

When the Gillard government failed to resolve the political impasse on offshore processing, it commissioned an Expert Panel on Asylum Seekers in June 2012 whose overarching mandate was to “prevent asylum seekers [from] risking their lives by travelling to Australia by boat” (Australian Government, 2012, p.9). The resulting Houston Report’s recommendation that offshore processing should resume on Nauru and Manus Island engendered a renewed bipartisan consensus that the Pacific Solution constituted the most ethical response to boat arrivals because it would ‘save lives’ (Abbott, 2012c; A balanced view, 2012; Lives depend on compromises, 2012). In September 2013, the policy realignment process came full circle when the newly-elected Abbott Government reintroduced all elements of the Howard Government’s hardline border protection measures. However, while Operation Sovereign Borders (OSB) authorises the forcible return of IMAs to their point of departure or home country, one of its stated aims is to “preven[t] people from risking their lives at sea” (Department of Home Affairs, Operation Sovereign Borders, n.d.). Both Labor and the Coalition’s zero-tolerance policies on boat arrivals exemplifies the ongoing importance of 17 exclusionary narratives in informing Australia’s hardline approach to IMAs. Nevertheless, the lasting normative effects of Rudd’s 2006 appeal to help the ‘vulnerable stranger’ are readily demonstrated by the fact that political elites continue to strategically use compassion rhetoric in order to justify the continued implementation of deterrence-based policies (Commonwealth [HoR], 12 February 2019, p. 1367).

Chapter 6 will subject these findings to further critical analysis by examining Australia’s asylum seeker policy during the Rudd/Gillard era within the purview of the CNR literature. By applying the discourse-analytical framework that I developed in Chapter 1 to this specific case study, I affirm my central argument that norm contestation does not entail a deliberative socialisation process, but rather involves the strategic utilisation of rhetorical arguments by agents in order to de-legitimise the normative positions of their opponents irrespective of whether these views are genuinely held. Just as Rudd had wedged Howard during the 2007 Federal Election by maintaining that the Pacific Solution was both fiscally irresponsible and unethical, the drownings argument had made it increasingly untenable for Labor to maintain its opposition to the Pacific Solution as more IMAs lost their lives at sea. However, while these debates led to the wholesale reintroduction of the Howard government’s hardline border protection measures in 2013, it was also accompanied by a significant shift in Australia’s political discourse on asylum seekers as they were primarily justified on humanitarian grounds. This in turn facilitates the broad conclusion that Australia’s asylum seeker policy will continue to shift and evolve in response to relative changes in its socio-political environment in the coming decades.

Having determined that the normative life-cycle is not finite, but rather constitutes a perpetual process where the domestic meaning-in-use of international norms is consistently being rearticulated by localised understandings of normative appropriateness, both Chapter 6 and the Conclusion will examine what happens when these rearticulated meanings are subsequently diffused back into the international arena. On the one hand, scholars such as Acharya are correct when they state that the ‘post-implementation’ phase of the normative life-cycle, which comprises the contestations that occur after an international norm has ostensibly been institutionalised domestically through complementary legislation, can further strengthen an international norm by enhancing its validity and applicability in a more diverse range of jurisdictions (Acharya, 2013), However, I argue that it can also have the opposite effect by weakening the legal foundations of international normative regimes. This point is aptly demonstrated by the fact that the drownings argument has not been limited to the Australian context, but has rather become an increasingly prominent feature of state-based challenges against the domestic applicability of international refugee and asylum seeker norms. 18

In order to affirm this hypothesis, Chapter 6 incorporates a comparative analysis that examines how the European Union (EU) border protection agency Frontex used compassion rhetoric in order to justify its deterrence-based policies during the 2015-16 European Migrant Crisis. While the agency’s primary mandate since its inception in 2004 has been to mitigate the threat of ‘illegal immigration’ by deterring irregular migrants from crossing the EU’s southern borders (Campesi, 2004, p.131), it has also increasingly used humanitarian language in order to justify its surveillance and interdiction operations (Horsti, 2012, p.305). When the 2011 Arab Spring led to a sudden rise in IMAs that attempted to reach European soil by sea, both Frontex and EU leaders became increasingly prolific in invoking the drownings argument in order to support its claim that these measures would save lives by disrupting the people-smuggling trade (Frontex, 2012, p.15; L. Davies, 2013). The European Migrant Crisis of 2015-16, which led to an unprecedented influx of asylum seekers (and drownings at sea), in turn led the EU to turn these assertions into an overarching policy objective to protect the welfare of IMAs by once again taking a hardline stance on irregular migration (European Commission, 2015a). The marked similarities between the Australian and European cases in turn facilitate the conclusion that the strategic use of humanitarian arguments in order to justify the exclusion of asylum seekers presents the most formidable challenge yet to the formal validity of the Refugee Convention.

Conclusion

In an increasingly globalised world, the notion that ‘international norms matter’ continues to be met with both widespread in-principle agreement and sustained state-based challenges. As Chapter 1 will demonstrate, the post-Cold War proliferation in human rights abuses by both authoritarian and liberal democratic states presented a dilemma for constructivist scholars who had asserted that ‘universally applicable’ human rights norms would be duly internalised by recalcitrant states once they had been ‘socialised’ into accepting them. More recently, critical constructivist scholars have begun to address these theoretical gaps by acknowledging that the norm contestation process is both dynamic and context-specific. By acknowledging that normative change is driven by the mutually constitutive interactions of agents, structures and relevant contexts, both the Rudd Government’s policy shift on asylum seekers and its eventual reversal can be more fully understood and put into context.

Chapter 1

The Domestic Contestation of International Norms:

A Conceptual Framework

Introduction

When Kevin Rudd became Labor Opposition leader in December 2006, his statements on asylum seekers and climate change contained a clearly articulated political message: international norms matter. In addition to pointing out that “we have a UN convention on the protection of refugees [because] the West (including Australia) turned its back on the Jewish people” (Rudd, 2006a, p.29), he called climate change the “great moral challenge of our generation” (Rudd, 2007c). In the leadup to the 2007 Federal Election, Rudd’s declaration that Australia had a positive duty to treat IMAs with compassion appeared to be both counterintuitive and politically risky in that it directly challenged the rationale that had underpinned its deterrence-based asylum seeker policy framework since 1989. However, Rudd’s socially progressive persona was not only favourably received by a significant proportion of the Australian public (Williams, 2008, pp.123-124; Crock, 2010a, pp.3-4; Van Onselen & Senior, 2007, vi), but also found support among both conservative and centre-left media outlets (Dodd, 2007; Marshall, 2007; S. Mares, 2007; Meanness has rarely been, 2007). In order to gain a better understanding of how Rudd was able to engender a normative shift on asylum seekers at that specific time (and why this position was subsequently repudiated), this chapter will develop a conceptual framework for examining how international norms are implemented and subsequently contested at the domestic level.

Part I will provide the theoretical grounding for the ensuing discussion by critically assessing both the first-generation constructivist literature on the normative life-cycle and the more recent critical constructivist scholarship that has been termed Critical Norm Research (CNR). In the late 1990s, a number of prominent constructivist scholars developed conceptual models that distilled the process of norm emergence, international diffusion, and domestic implementation into sequential and path- 20 dependent phases. Both Finnemore and Sikkink’s ‘Life-cycle’ model (1998) and Risse et. al’s ‘Spiral’ model (1999) posited that authoritarian states could be ‘socialised’ into accepting and subsequently internalising international human rights norms through the sustained efforts of norm entrepreneurs and transnational advocacy networks. However, while these contributions provided valuable insights into how these norms influence the behaviour of states, they also came under sustained criticism for failing to account for the “general contestedness of norms [as] well as the permanent negotiation processes through which normative meaning is produced and modified” (Engelkamp, Glaab & Renner, 2014, 36). Over the last decade, CNR scholars such as Antje Wiener have sought to redress these theoretical gaps by asserting that international norms “always remain flexible by definition [because] they are both structuring and socially constructed through interaction in a context” (Wiener, 2014, p.27).

The CNR literature makes a significant contribution to the existing scholarship on norm contestation by acknowledging that the mutually constitutive interactions between agents, structures and contexts can alter the domestic meaning-in-use of international norms at specific points in time. Nevertheless, its emergent status and consequent dearth of empirical studies also means that “its methodological toolkit to capture contestation and substantive foci are incomplete” (Betcy, 2018, p.29). Therefore, Part II will introduce a conceptual framework that incorporates a number of discourse-analytical models in order to elucidate how the domestic norm contestation process operates in practice. By drawing on Wodak and Weiss’ Discourse-Historical Approach (DHA) and Van Leeuwen’s political legitimation models and Krebs and Jackson’s work on rhetorical coercion, I provide a more multifaceted analytical framework for examining how political elites strategically use language and rhetoric in order to legitimate their normative stances. These insights in turn provide the necessary methodological tools for ascertaining why both Labor and the Coalition used compassion rhetoric in order to justify their respective positions on asylum seekers to the Australian public between 2007 and 2013.

I. Tracing the Life-Cycle of Normative Change

Over the last three decades, the question of why, how and when international norms influence the behaviour of states has engendered a large body of literature (Checkel, 1997; Finnemore & Sikkink, 1998; Risse & Sikkink, 1999; Risse & Ropp, 2013; Wiener, 2014; Engelkamp, Glaab & Renner, 2015). When the end of the Cold War in 1989 ushered in a new era of post-Westphalian internationalism, it engendered a renewed optimism that international human rights norms would become the dominant paradigm for influencing state behaviour in an increasingly democratised and 21 globalised world (Fukuyama, 1989, p.3). As a result, ‘first-generation’ constructivists scholars began to shift their focus to “the ways in which norms, institutions, and other cultural features of domestic and international environments affect state security interests and policies” (Jepperson, Wendt & Katzenstein, 1996, p.37; Checkel, 1997, p.474). In the late 1990s, a number of prominent authors developed conceptual models in order to demonstrate how states could be ‘socialised’ into internalising international human rights norms through the transformative actions of norm entrepreneurs, civil society movements, and transnational advocacy networks (Finnemore & Sikkink, 1998, p.895; Risse & Sikkink, 1999, pp.4-5; Acharya, 2004, p.242).

One of the most significant of these contributions was Finnemore and Sikkink’s ‘Life-cycle’ model of normative change (1998), which distilled the process of norm emergence, international diffusion, and domestic implementation into sequential and path-dependent phases. First, an emerging norm increasingly gains traction due to the sustained persuasion of ‘norm entrepreneurs’ (actors with influential organizational platforms) until it eventually reaches a ‘tipping point’ once a ‘critical mass’ of states have embraced the norm (norm emergence). The norm is then diffused throughout the international community as norm leaders attempt to socialize other states to become norm followers (norm cascade). Finally, the norm is incorporated at the domestic level until it is no longer subject to public debate and takes on a ‘taken-for-granted’ quality (norm internalization), which in turn alters the behaviour and social practices of states (Finnemore & Sikkink, 1998, 895). Keck and Sikkink’s ‘boomerang pattern’ (1998) presented a more expansive version of the norm emergence phase by asserting that civil society groups whose advocacy platforms are suppressed within authoritarian states will seek recourse by contacting transnational advocacy networks and international organisations who will exert pressure on their behalf (Keck & Sikkink, 1998, 12).

A year later, Risse et. al. advanced a more coercive five-stage ‘Spiral’ model for measuring human rights compliance by authoritarian states (Risse, Ropp & Sikkink, 1999). Since these types of states are able to routinely shirk their human rights obligations by curtailing avenues for domestic dissent and activism (repression), transnational advocacy groups are forced to instead lobby international human rights organisations and sympathetic liberal democratic states in order to consolidate their weak position and to enable the advocacy process to gain traction (denial). As international pressure mounts, authoritarian states make ‘low cost’ concessions which have the effect of further empowering and mobilising domestic advocacy groups (tactical concessions). This eventually compels them to accept human rights norms by ratifying relevant international instruments, changing domestic laws, setting up human rights institutions and regularly referring to them in political discourse (prescriptive 22 status), leading to a significant change in state behaviour marked by consistent compliance with human rights norms (rule-consistent behaviour) (Risse & Sikkink, 1999, pp.22-32).

While these contributions significantly advanced the constructivist agenda on international norm dynamics by acknowledging that they can have both constraining and constitutive effects on state behaviour, they were soon subjected to a number of interrelated criticisms which can be broadly distilled into six key arguments. These include: (1) failing to take into account that international norms continue to be contested during (and after) the domestic implementation phase; (2) advancing a static interpretation of the life-cycle process by assuming that international norms must be congruent with a state’s embedded domestic norms, structures, institutions and practices or risk being rejected; (3) asserting that liberal democratic states were not capable of violating international human rights norms because they constituted an innate facet of their national identity; (4) peripheralizing the importance of state leaders in engendering normative change and guiding the domestic implementation process; (5) not elaborating on when international norms have progressed to the ‘taken for granted’ stage by becoming normalised in both political and public discourse; and (6) not demonstrating how the contestation process generates normative shifts at specific points in time. As the following sections will demonstrate, these criticisms reveal significant conceptual gaps within the theoretical literature on the normative life-cycle that have yet to be fully addressed.

Norm Contestation during the Domestic Implementation Phase

According to Finnemore and Sikkink, “new norms never enter a normative vacuum but instead emerge in a highly contested normative space where they must compete with other norms and perceptions of interest” (Finnemore & Sikkink, 1998, p.897). Therefore, norm contestation, which can be succinctly defined as a dialogue where “actors compete for the “right” course of action [and] try to influence normative understandings” (Jetschke, 2011, pp.22-23), constitutes an integral part of the norm emergence phase. Emerging norms often have the effect of challenging (either directly or indirectly) the validity of the embedded norms, structures and practices that comprise a state’s established identity. Therefore, norm entrepreneurs and transnational advocacy networks have to employ a range of discursive techniques in order to build resonant frames that challenge the prevailing political status quo and enable the norm to gain traction domestically (Finnemore & Sikkink, 1998, 897; Risse & Sikkink, 1999, p.23). Once their organisational platforms have become sufficiently consolidated and enough domestic support has been garnered to enable the norm to gain traction, the norm diffusion process is driven into the international arena. Here, states continue to contest the scope 23 and applicability of the norm until a critical mass agrees to formulate a legal instrument (Finnemore & Sikkink, 1998, p.901).

By asserting that the formal validity of an international norm was no longer in dispute once it had attained the status of being ‘universally’ applicable, both models consequently assumed that the norm contestation phase had been largely dispensed with during the earlier stages of the normative life- cycle (Finnemore & Sikkink, 1998, p.902; Risse & Sikkink, 1999, p.3). As a result, the domestic implementation stage was characterised as a “rather conflict-free socialization proces[s]” (Deitelhoff & Zimmerman, 2013, p.2) where state leaders would invariably decide to engage in norm compliance due to a combination of material self-interest and felt moral obligation (Finnemore & Sikkink, 1998, p.912; Risse and Sikkink, 1999, p.10. See also Xuetong, 2011, p.236; Hoffenberth & Weber, 2015, p.80; Niemann, Holger & Henrik Schillinger, 2016, p.5). While Finnemore and Sikkink acknowledged that “international norms must always work their influence through the filter of domestic structures and domestic norms,” they nevertheless maintained that the relative importance of these variables would “lessen significantly once a norm has become institutionalized in the international system” (Finnemore & Sikkink, 1998, p.893). Similarly, Risse & Sikkink asserted that the primary purpose of norm contestation was to cajole recalcitrant states into internalising collective standards of appropriate behaviour (Risse & Sikkink, 1999, p.11). However, once the ‘prescriptive status’ phase had been reached, it was simply a matter of ‘habitualizing’ actors into accepting international norms “irrespective of individual beliefs about their validity” (Risse & Sikkink, 1999, p.16). As a result, “neither model deal[t] with normative dynamics in the sense of open-ended contention” (Hoffenberth & Weber, 2015, p.82) by largely omitting the fact that international norms continue to be subjected to “a considerable degree of contestation” during the domestic implementation phase (Wiener, 2007, p.2; Breuning, 2013, p.307; Horne, 2007, p.140; Heller & Kahl, 2013, p.415; Wiener & Puetter, 2009, Schwellnus, 2009, p.126).

According to Betts and Orchard, this normative ‘institutionalization-implementation gap’ was not adequately taken into account by first-generation constructivists because they assumed that they constituted sequential phases rather than parallel processes. Therefore, neither model recognised that “contestations can continue, or reemerge, years or even decades after a norm is first introduced” (A. Betts & Orchard, 2014, p.284) As Australia’s normative shift on IMAs clearly demonstrates, the seemingly unassailable bipartisan consensus that had underpinned the hardline asylum seeker policies of both Labor and Liberal/Coalition governments since 1989 did not preclude Rudd from recontesting and subsequently altering them in 2007. This in turn demonstrates that since the domestic ‘meaning in-use’ of international norms is constantly being rearticulated by multiple stakeholders with 24 diverging normative standpoints, it can produce significant variations in how these norms are interpreted and applied at specific points in time (Wiener, 2007, p.6; Checkel, 1999, p.86; Legro, 1997, p.33; Shawki, 2011; Bano, 2015, p.8).

The Countervailing Effect of Embedded Domestic Structures

The second criticism is that by primarily focusing on concrete cases of moral transformation where ‘good’ human rights-based norms have successfully altered state behaviour and practices (Acharya, 2004, p.239), the models did not account for why many international norms become mired in a policy “bottleneck that only few states pass” during the domestic implementation phase (Jetschke & Liese, 2013, p.27). As scholars have increasingly recognised in recent times, a state’s in-principle commitment to meet their normative obligations rarely translates into unconditional compliance, especially when it comes to protecting the rights of non-citizens (Wiener, 2014, pp.33-34; A. Schmidt, 2014, pp.248-250). While both the Refugee Convention and Additional Protocol have been endorsed by a critical mass of states, they also continue to be subject to multiple reservations and state-level challenges (UNHCR, Declarations and Reservations, n.d.). This in turn calls into question whether international refugee and asylum seeker norms can in fact be considered to be ‘universally’ applicable (Franck, 2001; Callaway, 2007). Moreover, since international human rights-based instruments “operat[e] without direct punitive capacity,” the extent of their domestic applicability remains subject to the discretion of individual states (Schwellnus, 2009, p.126).

In 2013, Risse et al’s The Persistent power of Human Rights (PPoHR) attempted to redress the conceptual weaknesses of the original ‘Spiral’ model by advancing numerous explanations in order to account for these enduring gaps between norm implementation and compliance. These included: (1) weak or limited statehood which prevents state authorities from fully enforcing norm-consistent behaviour (Jetschke & Liese, 2013, p.28); (2) an absence of political will by state leaders to endorse the move from in-principle acceptance to practical enforcement (Simmons, 2013, p.48); (3) countervailing structural impediments such as the retention of non-liberal institutional mechanisms (Simmons, 2013, pp.44-45); (4) limited opportunities for transnational activism and domestic human rights mobilisation (Jetschke & Liese, 2013, p.30); and (5) prevailing perceptions of norm incompatibility with entrenched local beliefs and practices (Kinzelbach, 2013, p.167). While these are all salient points that had not been fully acknowledged in the earlier literature, they fell short of explaining why international human rights norms continue to be contested in domestic environments where these barriers had either been fully eliminated or significantly mitigated. In Australia, the presence of an independent judiciary with the constitutional power to interpret the scope of 25

Australia’s international treaty obligations, active asylum seeker advocacy networks and a statutory human rights commission did not prevent the implementation of increasingly hardline asylum seeker policies (B. Fitzgerald, 1994; Asylum Seeker Resource Centre [ASRC], n.d.; Refugee Council of Australia [RCOA], n.d.; Human Rights Watch, 2016, p.85). As Dunne (2007, p.273) asserts, “[d]espite the ever expanding network of activists, advocates, institutions, authors, lawyers, INGOs, and so on, the problem of noncompliance to fundamental human rights norms continues.”

More recently, scholars have begun to focus on the important role that local contexts play in determining the domestic applicability of international norms (Acharya, 2004); Engelkamp & Glaab, 2015, p.203; Shawki, 2011). According to Martinsson (2011, p.1), norm stagnation during the implementation phase is primarily attributable to “cultural and political economy challenges that were not considered in the norm formation or in the advocacy campaign process.” Similarly, Zwingel (2005, p.413) points out that countervailing claims of cultural relativism at the state-level often resonate because “human rights practice [is] always contextual and embedded in existing social relations and values” (see also Liese, 2009, p.18). These analyses make a significant contribution to the existing literature on international norm dynamics by acknowledging the importance of domestic structures, beliefs and practices in influencing the implementation phase. Nevertheless, they also tend to reify the models’ static interpretation of the normative life-cycle by arguing that these domestic variables constituted relatively stable equilibria within which equally ‘fixed’ international norms had to find a cogent “degree of fit” or risk being rejected (Foot & Walter, 2013, p.333; V. Schmidt, 2010, p.13). By maintaining that “new ideas need not only to be institutionalized, but also [be] congruent with historically formed ideologies or the structure of political discourse of a nation” (Finnemore & Sikkink, 2001, p.407; Cortell & Davis Jr., 2000, p.67), these factors were often characterised as fatal impediments to the successful completion of the normative life-cycle (Bloomfield, 2016, p.321; Engelkamp & Glaab, 2015, p.203).

Acharya’s ‘norm circulation’ model attempted to address these issues by conceptualising the normative life-cycle as a ‘two-way process’ where international norms are “contested and localized to fit the cognitive priors of local actors [and] repatriated back to the wider global context along with other locally constructed norms” (Acharya, 2013, p.469). However, while he acknowledged that norms are, by their very nature, both dynamic and context-specific, his conclusion that this process “can lead to the strengthening of the norm and enhance the prospects for application and compliance” also perpetuated the view that normative change is inherently positive (Acharya, 2013, p.471). Sandholtz and Stiles’ ‘cycles theory of norm change’ does take into account that the norm contestation process can have both positive and negative implications by making international norms “stronger or 26 weaker, more specific (or less) [and] broader or narrower” (Sandholtz, 2009, p.6). Nevertheless, the attendant assumption that arguments that are grounded in the ‘foundational’ moral values of universality, equality and individual dignity are most conducive to engendering positive norm change does not take into account that these values can also be actively subverted in order to weaken them (Sandholtz, 2009, p.17; Bloomfield, 2016, p.313). As Jacob asserts, the norm contestation literature therefore has “yet to offer a more systematic and structured analysis of the multilayered agency from where contestation emerges and the varied processes through which implementation occurs (Jacob, 2018, p.403).

The broader implications of these theoretical assumptions become readily apparent when they are applied to the present case study. Within the literature on Australia’s asylum seeker policy, numerous scholars have pointed out that successive governments since 1980 have challenged the domestic applicability of international asylum seeker norms on the basis that they are incompatible with the embedded values, beliefs and practices that comprise Australia’s national identity (Pedersen, Attwell & Heveli, 2005, pp.156-157; McDonough & Pringle, 2014, p.82; Klocker & Dunn, 2003; McKay, Thomas & Kneebone, 2011). These findings are often paired with the assertion that Australia’s enduring ‘invasion anxiety’ and lengthy history of racial discrimination has created such a “pervasive climate of hostility” against IMAs that it precludes any positive normative shifts on the issue (Fozdar & Pedersen, 2013, p.372; Gale, 2004, p.330; Billings, 2011; Driver, 2011; Saul, 2012). However, Chapters 3 to 5 will demonstrate that these domestic structures have not remained static, but have rather evolved in response to contemporaneous shifts in the socio-political environment.

The Sovereignty Paradox

The third criticism is that by advancing an optimistic interpretation of the effect that international norms have on changing state behaviour, first-generation constructivists largely ignored the hierarchical nature of international normative regimes. This is particularly apparent when it comes to assessing the relative impact of ‘competing’ norms such as state sovereignty on the efficacy and applicability of human rights treaties (Stimmer & Wisken, 2019, p.517). The UN Charter enshrines the right of individual states to protect their territorial borders under the principles of sovereign equality (Article 1(2)), non-intervention (Article 2(4)) and self-defence (Article 51). However, while these provisions are intended to safeguard civilian populations within territorial boundaries from external threats and interference, they also have the paradoxical effect of implicitly sanctioning the marginalisation and exclusion of minority groups and non-citizens (Haddad, 2003). In the PPoHR, Jetschke and Liese (2013, pp.35-36) acknowledge that the PoHR had not fully fleshed out the fact 27 that the sovereignty norm has often served as a “crucial blocking factor” to the successful domestic implementation of international human rights norms.

The normative implications of this unequal balance are particularly evident when it comes to considering state responses to the Responsibility to Protect (R2P) doctrine. Hehir contends that while the concept is now routinely invoked by states in order to demonstrate their commitment to preventing widespread human rights abuses, this in-principle support has been accompanied by a marked decline in respect for international human rights norms (Hehir, 2019, p.29). When the International Commission on Intervention and State Sovereignty (ICISS) attempted to reframe the sovereignty norm in 2001 by making it contingent on a state’s moral obligation to protect its own citizens from harm, it engendered significant state-based objections over its scope and applicability (Welsh, 2013, p.369; Stimmer & Wisken, 2019, p.515). While the 2005 World Summit Outcome clarified the normative parameters of the R2P doctrine, it also affirmed the primacy of state sovereignty by limiting its application to mass atrocities (United Nations General Assembly, 2005, paragraphs 138- 139) and determined that the international community would only intervene if the violations exceed a “just cause threshold” (Jetschke & Liese, 2013, p.38). A similar pattern can also be discerned when it comes to examining the hierarchical nature of the rights of refugees and asylum seekers vis-à-vis the interests of individual nation-states. According to Haddad (2003, p.301), refugees “challenge the sacred sovereignty of the modern state” because they transcend the territorial boundaries that form the fundamental cornerstones of the Westphalian international system. While the very creation of refugees is often attributable to the failure of individual states to protect their own citizens, debates on the domestic applicability of refugee and asylum seeker norms are nevertheless dominated by a “discourse in which refugee protection is irreconcilable with a world of sovereign states” (Puggioni, 2016, p.40).

However, while these pessimistic assessments are certainly warranted, I argue that they also further perpetuate the notion that state sovereignty constitutes an infallible barrier that invariably supersedes human rights norms in relative importance. While static interpretations of state sovereignty have come under increased challenge in a post-Westphalian international landscape (see Birnie & Welsh, 2018, p.333), I argue that greater attention needs to be paid to “the circumstances under which the political legitimation of the nation-state changes over time” (Barkin & Cronin, 1994, pp. 107-108). As this case study will demonstrate, the robust policy framework that comprised the Howard government’s border protection regime did not preclude Rudd from modifying (if not outrightly challenging) the domestic meaning-in-use of sovereignty norms by offering a more cosmopolitan interpretation of the right to claim asylum. 28

Norm Violations by Liberal Democratic States

Following on from the third point, the fourth criticism is that the models didn’t take into account that liberal democratic states were just as willing to challenge the domestic applicability of international human rights norms as authoritarian states (Risse & Ropp, 2013, p.9; Dunne, 2007; Shannon, 2000, p.294; Wisman, 2014, p.29). By assuming that “a democratic regime type, the existence of transnational advocacy actors, and public debate are sufficient conditions for human rights compliance” (Jetschke & Liese, 2013, p.27), first-generation constructivists failed to acknowledge that these regimes were also characterised by exclusion, inequality and amoral conceptions of distributive justice (Kurki, 2010, p.378; Lamey, 2012, p.236). When viewed from a normative perspective, this phenomenon is rather perplexing because it directly contradicts the core assumption that “states care about following norms associated with liberalism because being “liberal states” is part of their identity” (Finnemore & Sikkink, 1998, p.904). Nevertheless, this pattern is readily demonstrated by the fact that an increased number of liberal democratic states have opted to implement restrictive border protection regimes that directly violate the human rights of asylum seekers in a securitised post-9/11 international landscape (Heller & Kahl, 2013, p.416; Creek, 2014; Liese, 2009, p.19).

In order to provide an explanation for this phenomenon within the context of irregular migration, scholars have increasingly focused on how the liberal democratic identity facilitates the exclusion of individuals who are deemed to pose an unacceptable risk to the social cohesion of a bounded community (Galloway, 1994). Proponents of open borders argue that liberalism imbues all individuals with equal moral standing which transcends national boundaries (Carens, 1999, p.1083; Galloway, 1994, pp.267-268; Odhiambo-Abuya, 2005, p.268; Schwellnus, 2009, p.130). However, those who favour more restrictive border protection policies maintain that states have a positive duty to prioritise the needs of citizens over the rights of non-citizens (Dauvergne, 1999, p.600; Lamey, 2011, p.238; Brennan, 2016, p.57; Mansouri, Leach & Nethery, 2009, p.135). As a result, humanitarian assistance to both refugees and asylum seekers is generally characterised as an act of altruistic benevolence rather than a non-derogable obligation to comply with a prescriptive norm (Parekh, 2014, pp.645-646; Capdevila & Callaghan, 2008, p.9; Every, 2008, p.214). The exclusion of ‘Others’ therefore not only constitutes a foundational principle upon which the liberal democratic identity is based, but also reflects the fact that “even the most fundamental right [can] be contested with regard to particular populations in liberal societies” (Basaran, 2015, p.206; James, 2014).

This emphasis on membership and exclusion has in turn led scholars to adopt a somewhat narrow focus when examining why international asylum seeker norms are subjected to such a high level of contestation within liberal democratic states. Chapter 2 will demonstrate that there is a predominant view among scholars who have examined the historical evolution of Australia’s asylum seeker policy that it is primarily driven by the enduring perception that IMAs pose an existential threat to Australia’s ‘way of life’ (G. Martin, 2015, p.308; Vas Dev, 2009, p.36; A. Burke, 2008; Edgar, 2013; Fleay, 2011; Pickering & Weber, 2014). These enduring fears have, according to these analyses, led successive governments to characterise asylum seekers as the undesirable “Other” that must be deterred from reaching Australia’s shores (O’Doherty & Augoustinos, 2008, p.577; Lamey, 2011, p.237; M. Welch, 2014; Every & Augoustinos, 2008, p.564). These accounts in turn reflect a broader tendency within the literature that examines norm violations by liberal democratic states to argue that threat perceptions constitute the primary mechanism by which states justify their exclusionary policies by portraying them as an act of rational self-preservation in an anarchical international environment (Shannon, 2000, p.294; Wisman, 2014, p.29; Heller & Kahl, 2013; Wiener & Puetter, 2009, pp.1-2). However, I argue that while these assertions are readily supported by the available evidence, the case study of Australia’s asylum seeker policy during the Rudd/Gillard era demonstrates the need to advance a more nuanced account of how international human rights norms are contested within liberal democratic states.

Leadership and Legitimacy

The fifth criticism is that the models did not take adequate account of the complex interrelationship between political leaders, the socio-political environments within which they operate, and normative change. By assuming that the norm diffusion and domestic implementation process is primarily driven by norm entrepreneurs and transnational advocacy networks, they did not acknowledge that normative change can also be initiated by a state leader “who is committed to international norms [and] may be able to elicit state compliance even in the face of domestic opposition” (Cardenas, 2004, p.216; S. Davies & True, 2017, p.702; Jervis, 2013, p.161; Breuning, 2013, p.308). Since the models primarily focused on developing states that had “strong material incentives for adopting the preferred standards of an international system dominated [by] industrialised democracies” (Cortell & Davis Jr., 2005, p.4), they also assumed that state leaders were primarily driven by “a combination of pressure for conformity, desire to enhance international legitimation, and [to] enhance their self-esteem” (Finnemore & Sikkink, 1998, 895; Risse & Sikkink, 1999, p.12; Herrmann & Shannon, 2001, p.622; Heller & Kahl, 2013, p.414). As a result, norm compliance was viewed as a largely reactionary 30 response to external pressures, material incentives and/or sanction threats (Risse & Ropp, 2013, 11; Schwellnus, 2009, p.125; Andrighetto & Conte, 2012, p.359; Busby, 2007, p.249).

The Australian case demonstrates that these arguments are problematic for three main reasons. First, it has not only remained resistant to sustained international pressure to soften its hardline stance on IMAs, but has also openly chastised UN human rights bodies for attempting to intervene in its domestic affairs (Cox, 2014; Millar, 2015; Maguire, 2016; McGaughey & Kenney, 2015). Second, the fact that Rudd nevertheless opted to increase Australia’s compliance with international asylum seeker norms despite a lack of material incentives and absence of effective coercive mechanisms reinforces the important role that state leaders often play in spurring normative change. Third, the assumption that leaders possessed the requisite power to make the necessary institutional changes once they had been compelled to act (Finnemore & Sikkink, 1998, p.904; Risse & Sikkink, 1999, p.29) ignores the fact that their ability to influence the policy-making process is often constrained within liberal democratic institutions. Within such pluralist socio-political environments, the number of influential stakeholders with diverging normative standpoints tends to be much higher (Wiener, 2014, p.36; Kurki, 2010, p.369; Martinnson, 2011, p.6). Therefore, political elites must ensure that their normative stances are also congruent with the specific socio-political environment within which they are being disseminated since they have both “political and psychological reasons for being sensitive to social expectations” (Shannon, 2000, p.294; Shannon & Keller, 2007, p.80; Every & Augoustinos, 2007, p.413; Perkowski, 2012, p.5). My conceptual framework will take these factors into account by demonstrating how legitimacy seeking behaviours influence the norm contestation process by determining how political elites opt to justify their respective policy positions to a domestic audience.

The Relationship between Political Discourse, the Media and Public Opinion

The sixth criticism is that the models did not elaborate on how a norm can be assumed to have progressed to the “taken-for-granted” stage, as evidenced by a definitive shift in political and public discourse towards norm acceptance (Risse & Ropp, 2013, p.11; Wiener, 2016, p.25). By maintaining that external pressures constituted the primary catalyst for spurring normative change at the domestic level (Finnemore & Sikkink, 1998, 903), the specific dynamics of the domestic environments within which the international norm is being implemented were left largely unexplored. However, this thesis will demonstrate that neither Labor’s normative shift on IMAs in 2007 nor its subsequent repudiation can be fully assessed without taking into account how political elites, the media and the public interact in order to shape the trajectory of the asylum seeker debate in Australia. 31

In order to ascertain why international asylum seeker norms have been subjected to such a high degree of domestic contestation in Australia, numerous scholars have focused on examining the correlation between Australia’s political response to boat arrivals and public opinion on the issue. Those that ascribe a dominant role to political elites maintain that they play an instrumental role in perpetuating negative representations of asylum seekers by “consciously constructing and overplaying threats and demonising adversaries” (Heller & Kahl, 2013, p.416). As the communicative interface between the political and public spheres, the media then reifies these hostile representations which in turn has the corollary effect of influencing public opinion on the issue (Van Dijk, 1993, pp.256-257; Van Dijk, 1995, p.13; Louis, Esses & Lalonde, 2013, p.157; Schloenhardt, 2000, p.34; J. Fitzgerald, Curtis & Corliss, 2012, p.484; Matthews & A. R. Brown, 2012). Conversely, others have attributed these negative attitudes to broader socio-cultural factors where ingrained beliefs about national identity and cultural incompatibility are the primary drivers of the asylum seeker debate. In order to maintain public support, political elites are compelled to adjust their policies to suit public expectations whilst also mollifying an opportunistic media that holds no qualms over exploiting their policy failures (Simon & Lynch, 1999; Trounson, Critchley & Pfeifer, 2015, p.1644; Pedersen, Attwell & Heveli, 2005; Mughan & Paxton, 2006, p.342).

Irrespective of which perspective is adopted, these scholars generally agree that domestic perceptions of boat arrivals are inherently negative (Pedersen, Attwell & Heveli, 2005, pp.156-157; McDonough & Pringle, 2014, p.82; Klocker & Dunn, 2003; McKay, Thomas & Kneebone, 2011; K. Betts, 2001; Goot & Watson, 2011). However, Australia’s normative shift on asylum seekers in 2007 clearly demonstrates that the mutually reciprocating relationship between political elites, the media and public opinion can also have the opposite effect. Rudd’s public declaration that Australia had a duty to treat asylum seekers with compassion not only reflected his own Christian beliefs, but also the increased public dissatisfaction with the adverse humanitarian consequences of Howard’s Pacific Solution. Within this more amenable socio-political environment, Rudd was able to “purposefully choose from a range of possible articulations and speech-acts” (Holzscheiter, 2014, pp.146-147) rather than being constrained by long-standing narratives of deterrence and exclusion. This in turn demonstrates that while the “media and political actors define asylum in ways relevant to their interests…contextual cues, normative factors and organizational constraints all influence the framing process” (Nickels, 2007, p.14). According to Joachim, this crucial point has been “largely recognised but not thoroughly digested by constructivists” (Joachim, 2003, p.251; Van Acker & Hollander, 2003, p.105). Therefore, this thesis will advance a more multi-faceted account of how the rhetorical strategies that political elites used in order to contest the domestic applicability of international asylum seeker norms were received in the public sphere between 2007 and 2013. 32

Timing and Context

The final criticism is that first-generation constructivists had not advanced a framework that was capable of determining when norms will generate specific policy outcomes at particular points in time (Walldorf Jr., 2010, p.640) and “[u]nder which conditions [norm] contestation lead[s] to norm decay or norm strengthening” (Deitelhoff & Zimmerman, 2013, p.1); Englkamp, Glaab & Renner, 2014, p.42; Wiener, 2009, p.185). While Risse and Sikkink maintained that the Spiral Model “does not assume evolutionary progress towards norm implementation, but claims to explain variation and lack of progress” (Risse & Sikkink, 1999, p.34; Finnemore & Sikkink, 1998, p.895), they nevertheless advanced a “contingent and path dependent” process that primarily attributed these variations to either structural or agent-driven, rather than contextual, factors (Raymond, Weldon, D. Kelly, Arriaga & Clark, 2014, p.197; Hoffenberth & Weber, 2015, p.76; Schmidt, 2010, p.3; Flockhart, 2016, p.801). As a result, neither model took into account that “the ambiguities that make a norm’s diffusion possible may also lead to shifts and modifications in its content over time, producing varied effects when it is translated into practice” (Krook & True, 2012, p.109; Niemann & Shillinger, 2016, pp.1- 2). As this case study will demonstrate, Australia’s normative shift on IMAs in 2007 was facilitated by a confluence of agent-driven, structural and context factors whose relative impact cannot be measured separately.

The more recent literature on norm contestation has begun to address this conceptual gap by acknowledging that norms, by their very nature, are “dynamic, intersubjective constructs rather than static structures” that are subject to change at both the micro and macro level (Schmidt, 2008, p.303). Even if both the international norms and the embedded domestic structures within which they are being implemented remain relatively stable, the fact that standards of normative appropriateness shift and evolve over time ensures that the normative life-cycle is a far from straightforward process (Deitelhoff & Zimmerman, 2013, p.1; Heller & Kahl, 2013, p.415; Welsh, 2013, p.380; Bano, 2015, p.15). Orchard (2014, p.18) points out that since agents “operate within an environment constituted by structures that they in turn create and change over time,” they may take advantage of “events that punctuate the status quo [in order] to question preexisting normative understandings” and argue in favour of alternative interpretations. However, just as a more amenable socio-political landscape may enable a norm entrepreneur to increase a state’s level of compliance with an international norm, intervening events may once again cause it to regress domestically (McKeown, 2009, p.6; Sandholtz, 2009, p.148). 33

These six criticisms in turn reflect the broader problem that both the earlier constructivist scholarship on the normative life-cycle and the empirical literature on Australia’s asylum seeker policy have been largely unable to provide an explanatory framework for why Rudd opted to challenge the political status quo on asylum seekers in 2007. As this thesis will demonstrate, the question of why Labor’s humanitarian platform on IMAs was unable to be sustained cannot be answered without acknowledging that the domestic meaning-in-use of international norms is both malleable and context-specific. In order to address these theoretical gaps, I advance a discourse-analytical conceptual framework in Part II of this chapter that incorporates insights from the more recent CNR literature in order to demonstrate that the norm contestation process is driven by the mutually constitutive interactions of agents, structures and relevant contexts.

II. Critical Norm Research: Bridging the Conceptual Divide

Over the last decade, a new stream of scholarship has emerged that has been termed Critical Norm Research (CNR). The primary aim of the CNR literature is to resolve the conceptual gaps that informed earlier accounts of the normative life-cycle by demonstrating that the domestic meaning- in-use of international norms is both dynamic and context-specific (Wiener, 2014, pp.11, 30). However, this section will demonstrate that while the CNR literature has significantly advanced the research agenda on norm contestation, there nevertheless remain some enduring gaps that have yet to be effectively addressed.

Critical Norm Research (CNR)

According to Engelkamp, Glaab and Renner (2014, p.36), the CNR literature focuses on examining the “general contestedness of norms [as] well as the permanent negotiation processes through which normative meaning is produced and modified.” One of the central contentions of CNR scholars is that norms have a ‘dual quality’ in that “they are both structuring and socially constructed through interaction in a context [and] while stable over particular periods, they always remain flexible by definition.” (Wiener, 2014, p.27). Since norms are, by their very nature, intersubjective phenomena, they

can neither be treated as objective factors that are exogenously given and independent of actor perceptions and interpretations, nor can they be reduced to subjective ideas, beliefs or intentions held by individual actors (Schwellnus, 2009, pp.126-127).

Even after they have been formally accepted and implemented at the domestic level, international norms continue to be contested and (re)interpreted by multiple stakeholders with subjective (and often divergent) understandings of normative meaning acting within specific socio-political contexts (Deitelhoff & Zimmerman, 2013; Heller & Kahl, 2013, p.415; Welsh, 2013, p.380). Therefore, the norm contestation process constitutes a norm-generative practice that “involves re-/enacting the normative structure of meaning-in-use at any time” (Wiener, 2014, p.viii). By maintaining that normative change is driven by the mutually constitutive interactions of agents, structures and relevant contexts,17 the CNR literature constitutes an important step forward in addressing some of the theoretical gaps within the earlier constructivist literature on the normative life-cycle.

The ‘Cycle of Potential Contestation’

In her 2014 book A Theory of Contestation, prominent CNR scholar Antje Wiener advances a theoretical framework that aims to demonstrate how the norm contestation process determines the extent to which international norms are embedded within the domestic policy frameworks of states. For Wiener, norm contestation constitutes both “a social activity that involves discursive and critical engagement with norms of governance [and] a normative critique [which] involves an interest in either maintaining or changing the status quo (Wiener, 2014, p.2). This characterisation encapsulates the ‘dual quality’ of norms as being both socially constructed (i.e. when contestation establishes which norm is appropriate and how to implement it) and structuring (i.e. when contestation adds to the re-/construction of normative meaning and generates changing normativity) (Wiener, 2014, p.29). Nevertheless, she advances a model that, similarly to Finnemore and Sikkink and Risse et al’s offerings, is both sequential and path-dependent in nature.

Wiener’s “cycle of potential contestation” is divided into three separate segments. These include (1) the constituting stage, where the formal validity of a norm is established by a political community; (2) the referral stage, where norms are referred to as an appropriate indicator of behaviour or a source of social obligation held by a group; and (3) the implementation stage, where norms are implemented ‘on the ground’ by individual norm users (Wiener, 2014, p.19). The formal validity of a norm is most likely to be contested at the constituting stage (i.e. in the process of drafting of a constitution, a treaty, a convention), the social recognition of a norm at the referring stage (i.e. when different social groups do not agree about which is the appropriate behaviour in a given situation), and the cultural validity of a norm at the implementing stage (i.e. where individuals bring their respective background experience to bear) (Wiener, 2014, pp.29-30). However, by relegating each factor to a specific phase

17 For a more detailed analysis of the ‘agent-structure’ debate in international relations, see Doty, 1997, p.367; Dessler, 1989, pp.441-473; Steele, 2007, p.25. 35 of the norm contestation cycle, Wiener’s model does not account for the fact that these processes may overlap and consequently engender different policy outcomes. Just as debates over the cultural validity of a norm may play a critical role in shaping the parameters of a norm during the constituting stage, both the formal validity and applicability of international norms may continue to be challenged during the domestic implementation stage.

The most problematic element of Wiener’s argument relates to her claim that establishing equal access to ‘regular’ contestation constitutes a critical precursor to solving the ‘legitimacy deficit’ between international acceptance and domestic implementation (Wiener, 2014, pp.33-34; Acharya, 2013, p.471). By maintaining that “norms that evolve [through] policymaking, jurisprudence or political practice enjoy a more balanced degree of legitimacy [as] their moral claims evolve in direct relation with practice” (Wiener, 2014, pp.36-37), Wiener’s model does not sufficiently acknowledge that these deliberative processes can also have the opposite effect (Wolff & Zimmermann, 2016, p.528; M. McDonald, 2011; p.284; Deitelhoff & Zimmerman, 2019). As Chapters 4 and 5 will demonstrate, Rudd’s ability to sustain his ‘hardline and humane’ approach was significantly diminished when the Coalition, numerous conservative and centre-left media outlets, several high- profile refugee advocates and a significant proportion of the Australian public began to challenge his position on humanitarian grounds. While the introduction of the Pacific Solution in 2001 had been justified as a necessary security measure, its reintroduction in 2013 was legitimated on the basis that it would ‘save lives.’ By once again validating the policy norms that comprise Australia’s hardline asylum seeker policy, the norm contestation process also suppressed the domestic efficacy of international asylum seeker norms. In addition, Wiener reiterates the claim of first-generation constructivists that liberal democracies are the most appropriate conduits for consolidating the validity of international norms because they “facilitat[e] the opportunity for stakeholders to participate in negotiating the normativity of governance” (Wiener, 2014, p.46). As a result, the ‘cycle of potential contestation’ replicates many of the conceptual gaps that had previously inhibited the effectiveness of both the Life-cycle and Spiral models.

The Politics of Legitimation

The crux of these critiques is that by emphasising the transformative power of norm contestation as both a catalyst for positive change and as an invaluable tool for closing the legitimacy gap (Wiener, 2014, p.55-58), Wiener does not fully take into consideration the equally crucial role that political legitimation plays in enabling political elites to challenge the domestic applicability of an international norm. According to Krebs and Jackson, the notion that agents will internalise a norm 36 once they have been persuaded to accept the ‘correctness’ of pursuing such a course of action belies the coercive nature of the norm contestation process (Krebs & Jackson, 2007, p.36). While the primary goal of political legitimation is to justify the implementation of specific policies to a domestic audience by ‘‘imbu[ing] their utterances with evidence, authority, and truth,” it also has the dual purpose of de-legitimising the normative position of their opponents by providing a moral basis for reinforcing existing power imbalances (Charteris-Black, 2005, p.17; Oddo, 2011, p.289; Keating, 2014, p.4; N. Fairclough, 2005, p.56). When viewed from this perspective, it is more appropriate to define norm contestation as

an instance of strategic social construction that aims at undermining or displacing an accepted or emerging intersubjective meaning through the formulation by actors of competing discursive interventions that challenge the meaning of norms that embody conflictive interpretations of values (Contessi, 2010, p.325-326).

What is particularly significant about legitimation as both a political tactic and rhetorical strategy is that it lies at the heart of the norm contestation process by creating an interface between the agents that contest the norm and the broader socio-political environment within which they operate. In addition to being informed by individually held conceptions of normative meaning (Krook & True, 2010, p.109) and the “morals and values that constitute recognizable variables within the community” (Reyes, 2011, p.798; Wiener, 2014, p.48; McDonald & Merefield, 2010, p.188), legitimation strategies also serve the broader political purpose of influencing public perceptions and stifling opposing viewpoints (McNevin, 2007, p.612; Hyndman & Hountz, 2008, p.249–269; Manderson, 2013, p.6; Gelber & M. McDonald, 2006, p.270; Dimitrakopoulos, 2008, p.324). Moreover, since they are informed by a range of interrelated agency-driven and structural variables that are also context-specific and subject to change, they directly influence how a disputed norm is contested at particular points in time (Orchard, 2014, p.10). Therefore, any analysis that purports to examine the relationship between norm contestation and domestic compliance rates must take into account how the legitimation strategies that political elites adopt in order to elevate their respective normative claims over others influences both the content and trajectory of the norm implementation process (Payne, 2001, p.38; Cardenas, 2004, p.220).

Within the contours of the norm contestation process, legitimation strategies often have the specific purpose of neutralising the policy positions of opposing stakeholders by challenging the rationale behind their respective normative viewpoints (Koreinik, 2011, p.240). This de-legitimisation process enables political elites to “shift and raise the burden of justification necessary to overcome the 37 claimant's position in favor of competing options” (Cortell & Davis Jr., 2000, p.69). At the same time, policy makers are also faced with the dilemma of “how [to] shape the policy agenda [when] opportunities are being perceived and structured by others” (Hermann, 1999, pp.4-5). The relative success of the rhetorical strategies that they employ in order to challenge opposing viewpoints therefore depends on their ability to convince a domestic audience that they are congruent with contemporaneous understandings of normative appropriateness. In 2007, Rudd’s argument that the Pacific Solution was both impractical and inhumane was positively received due to his ability to harness the growing domestic dissatisfaction with the Howard government’s ongoing failure to embrace a more progressive policy agenda. However, when the socio-political environment once again began to shift in 2009, the Coalition capitalised on Rudd’s inability to fulfil his election promise to protect Australia’s borders while treating asylum seekers with compassion.

Whereas norm entrepreneurs use a variety of discursive tactics18 in order to promote normative change, norm ‘antipreneurs’ adopt a variety of reciprocal strategies ranging from outright rejection to ‘creative resistance’ in order to maintain the normative status quo (Bloomfield, 2016, p.321). However, because these strategies are also context-specific, they may actually be antithetical to the personally-held beliefs and/or subjective intentions of norm challengers because the overall aim is to advance their policy agenda on a specific issue (Lantis & Bloomberg, 2018, p.153). Since the main aim of rhetorical coercion is to compel opponents to endorse a position they would otherwise reject by leaving them “without access to the rhetorical materials needed to craft a socially sustainable rebuttal,” it is immaterial whether or not the promoted norm has been ‘internalised’ by either party (Krebs & Jackson, 2007, p.36). This point is aptly demonstrated by the fact that while Abbott’s publicly stated concern for the welfare of IMAs was received with great cynicism in the public sphere, it nevertheless resonated with a significant proportion of the Australian people because it accorded with their current understandings of normative appropriateness (D. Shanahan, 2011b; Grattan, 2011e; Coorey, 2011c).

In keeping with this premise, I will advance the central claim that the drownings argument constituted a targeted rhetorical strategy by the Abbott Government to de-legitimise both the moral and practical the foundation of Labor’s 2007 asylum seeker policy changes. While Abbott’s ‘Stop the Boats’ strategy was primarily aimed at perpetuating deterrence-based narratives that portrayed irregular migration as an existential threat, he also appropriated Rudd’s compassion rhetoric for his own purposes by arguing that Labor’s asylum seeker policy was directly responsible for encouraging IMAs to risk their lives at sea by employing the services of people-smugglers. In the process, he not

18 such as strategic bargaining, moral consciousness-raising, shaming, argumentation, dialogue and persuasion: Risse & Sikkink, 1999, p.14. 38 only provided a justificatory basis for the reintroduction of stronger border protection policies, but also imbued it with a moral dimension by demonstrating that it was necessary in order to ‘save lives.’ (Kerry Murphy, 2015; Ryan, 2013; Muytiens & Ball, 2013, p.456). This in turn reinforces the argument that “the rhetoric of humanitarianism [plays] a crucial role” in enabling states to justify norm violations by portraying them as a necessary precursor to protecting vulnerable people from harm (Banta, 2012, pp.386-388; Chimni, 2000, p.244).

Future Pathways for the CNR Agenda

There is no question that the CNR literature has significantly advanced the constructivist agenda on international norm dynamics and political change. However, this section will demonstrate that it has yet to effectively bridge the conceptual divide between theory and practice by advancing a methodological framework that “identif[ies] distinct patterns or conditions of this process” whilst still acknowledging that norms are both dynamic and context-specific (Wiener, 2009, p.176). While CNR scholars such as Wiener readily assert that the extent to which international norms are implemented at the domestic level “depends on the institutional procedures and the relevant practices of politics and policy-making” (Wiener, 2014, p.58), more research needs to be undertaken in order to demonstrate how these variables intersect with the individual normative standpoints of agents acting within specific socio-political contexts. As Regina Heller, Kahl and Pisoiu point out, the research puzzle of “[w]hether processes of norm contestation lead to the erosion or strengthening of a given norm is an empirical question [that] cannot be decided on purely conceptual grounds” (R. Heller, Kahl & Pisoiu, 2012, p.283; Panke & Petersohn, 2012, p.720).

Over the last decade, there has been a marked increase in studies that analyse cases of state noncompliance with a wide array of international norms including the prohibition on torture and ill- treatment (Liese, 2009; McKeown, 2009; Keating, 2014), nuclear non-proliferation (Bano, 2015), climate change (Pettenger, 2016; Beeson & M. McDonald, 2013, pp.331-348), and the responsibility to protect (Welsh, 2013). In her article, Liese argues that the U.S. circumvented the jus cogens prohibition on torture by reconstructing its applied meaning in order to make it congruent with its national security agenda. By challenging its applicability on the basis of exceptional necessity, U.S policy makers sought to legitimate their violations by arguing that the prohibition did not apply to terrorists that posed an immediate threat to its citizens (Liese, 2009, pp.41-42). McKeown similarly argues that these revisionist arguments not only actively reframed torture as an acceptable and necessary tool in the War on Terror (McKeown, 2009, p.6), but also engendered a process of norm regression that directly challenged the prescriptive status of the prohibition on torture norm 39

(McKeown, 2009, pp.11-12; cf. Keating, 2014). In their article on the politics of climate change in Australia, Beeson and McDonald stress that the norm contestation process necessitates and examination of both the “contexts in which political leaders might conceive of and pursue their conception of the national interest, and the dynamics of contestation over those interests” (Beeson & McDonald, 2013, p.338). Despite the myriad structural impediments that continue to frustrate meaningful progress on climate change, the authors conclude that the scope nevertheless exists for “strategic actors [to] wield symbolic power effectively to generate and sustain change” (Beeson & McDonald, 2013, p.346).

More recent contributions have also sought to elaborate on how the norm contestation process is driven by the mutually constitutive interactions of agents, structures and relevant contexts. In one of her most recent works, Wiener argues that while the normative structure of meaning-in-use “differs according to the degree of fit encountered in distinct local contexts” (Wiener, 2018, p.115), the question of whether these domestic structures result in the acceptance or rejection of an international norm often depends on the level of critical engagement by stakeholders that are exercising political agency (Wiener, 2018, p.117). The central issue of how these dynamic interactions operate in practice and how they affect the salience of an international norm also forms the focal point of many analyses in the burgeoning R2P literature. In her article, Welsh argues that while the 2005 World Summit significantly narrowed the scope of the R2P doctrine, the differing interpretations over its applicability by various stakeholders in turn paved the way for ongoing contestation (Welsh, 2013, p.369). She concludes that while analyses of the conditions that lead to norm acceptance and rejection are important, scholars need to pay closer attention to “how actors resist particular features of a norm, or forward alternative interpretations, during the post-institutionalization phase” (Welsh, 2013, p.380; see also Arcudi, 2019, pp.180-181).

While these more recent contributions have significantly advanced the CNR research agenda, some of the analytical gaps from both the first-generation constructivist literature and the critiques that followed have only been partially addressed. First, there is an ongoing tendency to retain the arbitrary distinctions between ‘good’ and ‘bad’ norm dynamics. As a result, the norm contestation process continues to be portrayed as either an inclusive dialogue where rational deliberation between like- minded stakeholders enhances the legitimacy of a norm, or a protracted series of discursive conflicts that leads to norm erosion and (in rare instances) norm failure (Panke & Petersohn, 2016). Engelkamp, Glaab and Renner further point out that by continuing to equate ‘good’ norms with “Western understandings of democracy, human rights [and] justice,” the notion that these values can be appropriated for the specific purpose of maintaining and strengthening existing power imbalances 40 remains underexplored by CNR scholars (Engelkamp, Glaab & Renner, 2016, p.57). Second, some CNR contributions have maintained the assumption that international normative regimes are inherently hierarchical in that certain foundational norms (such as state sovereignty) continue to trump human rights norms in the domestic political agendas of individual states, especially in a securitised post-9/11 landscape (Liese, 2009, p.42). While these pessimistic assessments largely arose from the widespread human rights violations that accompanied the War on Terror and the uneven success of the R2P agenda (see above), this case study demonstrates that the normative meanings that are attached to territorial boundaries are just as susceptible to rearticulation if the matrix of circumstances are conducive to facilitating a normative shift.

Despite these ongoing debates within the norm contestation literature, Deitelhoff and Zimmerman are undoubtedly correct when they argue that they provide the necessary impetus for expanding its current lines of inquiry in order to “help us understand why challenges cause some international norms to lose their influence, others to remain robust, and still others to become stronger” (Deitelhoff & Zimmerman, 2019, p.3). In her recent examination of international rule-of-law commissions in Guatemala, Zimmerman emphasises that norm diffusion processes are not unidirectional, but rather cyclical in that rearticulated localised standards of normative appropriateness “can have effects on the global interpretation of norms and institutional models” (Zimmerman, 2019, p.29). This point is also reiterated by Hofmann and Suthanthiraraj, who argue that while the R2P continues to be subject to significant contestation, it is also consistently being rearticulated by both norm entrepreneurs and antipreneurs who “change their strategies and re-frame an existing international norm in their attempts to adapt a norm to the dynamics of contestation” (Hofmann and Suthanthiraraj, 2019, pp.227-228). The dynamic nature of these diffusion and adaptation/modification strategies in turn provide fertile ground for future research on the cyclical nature of the normative life-cycle.

By incorporating and elaborating on the insights from both ‘first-generation’ CNR scholars and the more recent contributions, this thesis seeks to further advance both the empirical and theoretical literature on norm contestation. Chapter 6 will demonstrate that while the re-emergence of a hardline asylum seeker policy in 2013 appeared to reflect the continued dominance of securitised narratives on boat arrivals in Australia, the rearticulated standards of normative appropriateness that comprised both the ‘vulnerable stranger’ and the ‘drownings’ arguments not only significantly altered the normative parameters of the asylum seeker debate, but were also diffused back into the international arena. This feedback loop, which occurred concurrently with similar developments in other jurisdictions such as the EU, not only engendered a new post-implementation phase life-cycle 41 process, but also presents the most formidable challenge yet to the formal validity of international refugee and asylum seeker norms.

III. Methodology

In order to address the theoretical limitations within both the constructivist literature on the normative life-cycle and the CNR literature, this section will outline a conceptual framework that takes into account that the norm contestation process is both dynamic and context-specific. In recognition of the fact that a “discursive approach focused on norms as sense-making practices offers greater leverage for analysing patterns in their origins, adoption and implementation in diverse contexts” (Krook & True, 2012, p.109; Risse & Ropp, 2013, p.14), I have developed a discourse-analytical methodological framework for examining the crucial role that rhetorical legitimation strategies played in influencing the trajectory of Australia’s asylum seeker policy between 2007 and 2013.

Critical Discourse Analysis

Critical Discourse Analysis (CDA) aims to gain a greater understanding of how discourses, which can be broadly defined as “the space where intersubjective meaning is created, sustained, transformed and, accordingly, becomes constitutive of social reality,” (re)produce social inequalities and reinforce asymmetrical power structures (Holzscheiter, 2014, p.144; Van Dijk, 1993, p.250; Souto-Manning, 2014, pp.159-160; Wodak & Weiss, 2003, p.10; P. Baker, Gabrielatos, KhosraviNik, Krzyzanowski, McEnery & Wodak, 2008, p.280; Banta, 2012, p.381; Hajer, 1997, p.44). The CDA literature primarily focuses on analysing relationships of causality and determination between communicative interactions and discursive practices on the one hand, and social and cultural structures, relations and processes on the other (N. Fairclough, 1995, p.132). Discourses play a pivotal role in shaping the social construction of cultural norms and power structures and informing the way that states confront new political dilemmas in the light of existing, adaptable, and competing beliefs (Souto-Manning, 2014, p.163; KhosraviNik, 2015, pp.53-54; Wehner & Thies, 2014, p.414). Therefore, a discourse- analytical framework is the most appropriate mechanism for testing the hypothesis that “[c]ontestation and struggle between strategies for action and change are in part contestation and struggle over discourses” (N. Fairclough, 2005, p.67; Holzscheiter, 2014, 149).

One of the central tenets of the CDA approach is that the normative implications of speech-acts and texts cannot be fully understood without taking into account the broader socio-political context within which they take place (Holzscheiter, 2014, p.144; KhosraviNik, 2015, p.53). Since discourses are generally articulated in a communal setting, their impact can only be understood within the context 42 of the interplay between social situations, actions, actors and societal structures (Wodak & Meyer, 2009, p.21). However, while contexts “control the processes of discourse production and comprehension,” they also enable language users to “shape their discourse appropriately to the (for them) relevant properties of the communicative situation” (Van Dijk, 2008, p.17). As a result, contexts are not static, but rather dynamic in that “[t]hey are constructed for each new communicative situation and then ongoingly updated and adapted to (the subjective interpretation of) the current constraints of the situation” (Van Dijk, 2008, p.18; I. Fairclough & N. Fairclough, Norman, 2012, p.26; Hier & Greenberg, 2002, p.492). These considerations in turn form the foundation for the discourse-analytical framework that will be outlined below.

Discourse-Analytical Conceptual Framework

The discourse-analytical conceptual framework that I have developed in order to answer the research question is comprised of three main components. First, I will utilise Wodak and Weiss’ Discourse- Historical Approach (DHA) model in order to assess the impact that humanitarian arguments had on shaping the normative parameters of the asylum seeker debate between 2007 and 2013. The DHA approach focuses on examining (1) the immediate language or text-internal co-text; (2) the intertextual and interdiscursive relationship between utterances, texts, genres and discourses; (3) the extralinguistic social/sociological variables and institutional frames of a specific ‘context of situation’; and (4) the broader socio-political and historical contexts within which the discursive practices are embedded in and related to (Wodak & Weiss, 2003, p.22). In order to identify real-time changes in language patterns and narrative structures, the DHA model emphasises the importance of analysing the content of the data, the discursive strategies that are employed, and the linguistic realisation of these contents and strategies (Van Leeuwen & Wodak, 1999, p.91). Therefore, it constitutes the most appropriate analytical framework for giving effect to the CNR contention that both the causes and consequences of normative change cannot be examined without examining the mutually constitutive role of agents, structures, and broader socio-political contexts.

Second, I draw on Van Leeuwen’s political legitimation discourse model in order to gain a greater insight into the types of rhetorical strategies that political elites use in order to provide a justificatory basis for their respective political agendas. According to Van Leeuwen, there are four main types of legitimation strategies. These include: (1) authorisation (legitimation by reference to the authority of tradition, custom and law, and of persons in whom institutional authority of some kind is vested); (2) moral evaluation (legitimation by reference to ‘value systems’); (3) rationalization (legitimation by reference to the goals and uses of institutionalized social action, and to the knowledge society has 43 constructed to endow them with cognitive validity); and (4) mythopoesis (legitimation conveyed through narratives whose outcomes reward legitimate actions and punish non-legitimate actions) (Van Leeuwen, 2007), p.92). Reyes then further distils these categories into their specific components by outlining the key strategies that political elites use in order to legitimise their policies while also de-legitimising opposing/alternative viewpoints. These include (1) justifying, rationalising and subsequently naturalising the exclusion, discrimination or demonization of others; (2) declaring the existence of a looming threat that requires immediate action in order to avert it; (3) demonstrating that the policy is the end-product of a process of careful deliberation and rational analysis; (4) drawing on expert knowledge and using authoritative sources in order to reinforce their position; and (5) arguing that the policy is for the ‘common good’ by benefiting both the target group and society as a whole by protecting their welfare (Reyes, 2011, pp.785-787).

When used in conjunction with the broader insights from both the CNR and CDA literatures, these discourse-analytical models will provide the necessary methodological foundation for examining why Rudd’s attempt to take Australia’s asylum seeker policy in a more humanitarian direction in 2007 was unable to be sustained. As Chapters 3 to 5 will demonstrate, the above-mentioned rhetorical strategies have all played a crucial role in shaping the normative parameters of the asylum seeker debate at specific points in time. However, their relative effectiveness and consequent impact on altering the domestic meaning-in-use of international asylum seeker norms also depended on the specific contextual matrix within which they were advanced.

Data Collection Methods

In order to identify the root causes, immediate impact, and broader socio-historical implications of Rudd’s (re)articulation of the domestic meaning-in-use of international asylum seeker norms in 2007, this thesis utilises a number of different data collection methods that are designed to give practical effect to the discourse-analytical framework that was outlined above.

(a) Secondary Sources

During the first data collection phase, I consulted a wide array of secondary sources including books, journal articles, parliamentary library reports and conference papers. These sources were then collated for the purpose of conducting a literature review of both the theoretical literature on international norm dynamics and domestic change and the empirical literature on Australia’s asylum seeker policy. For Chapter 1, I began by locating the most prominent texts and authors within both the earlier constructivist literature on the normative life-cycle and the more recent CNR literature. Then, I 44 focused on outlining the key debates within the norm contestation literature in order to identify enduring knowledge gaps that the present case study would help to address. For the empirical literature on Australia’s asylum seeker policy, I did a general keyword search in order to locate a wide array of scholarly analyses on the topic. In order to gain the most comprehensive overview of how scholars have interpreted the historical evolution and current dynamics of Australia’s refugee and asylum seeker policies, I included all located texts that covered the time period between 1901 and 2013 and directly referred to Australia’s political response to refugees and boat arrivals. However, for Chapters 4 and 5, I only included analyses that focused on the period that is covered by the case study (2007 and 2013).

After collecting the relevant source material, I conducted a thematic analysis in order to outline and assess the dominant themes, narrative structures and behavioural patterns that scholars have identified in order to provide an explanatory framework for Australia’s hardline response to boat arrivals. In order to do this, the literature was first divided into the dominant schools of thought that scholars have drawn on in order to inform their analyses (post-structuralism, post-colonialism, constructivism, securitisation theory and public policy analysis). Then, I focused on outlining the key arguments and rhetorical strategies that scholars have identified in order to explain how political elites have sought to justify their hardline response to IMAs to a domestic audience. The codes that were derived from these main themes and sub-categories were then used as a reference point in Chapters 4 and 5 in order to determine the relative importance of humanitarian arguments in driving the asylum seeker debate during the Rudd/Gillard era (Braun & Clarke, 2006, p.84).

(b) Primary Sources

The second data collection phase involved the collation and analysis of a wide range of primary sources (including press releases, newspaper articles, media interviews, parliamentary debates and government publications) in order to gain direct access to texts and speech acts as they were made.

First, I accessed Hansard through the Parliament of Australia website in order collect press releases and parliamentary debates from both the House of Representatives (HoR) and the Senate. Starting in 1945, I surveyed each ensuing year separately and identified any relevant statements that could be identified as being humanitarian in nature (see below). Press releases were also gathered from the Prime Minister (PM) transcripts website. Second, I collected a large number of newspaper articles in order to discern real-time shifts in both media commentary and public opinion on the asylum seeker issue. Articles that were written prior to 2007 were sourced according to their level of availability. However, for the period of 2007 to 2013, I primarily focused on three major metropolitan and national 45 newspapers: The Australian, The Age and The Sydney Morning Herald. These media outlets were selected on the basis that they not only encompass a broad spectrum of ideological perspectives (ranging from conservative to centre-left), but are also considered to be the three most influential newspapers due to their high readership volume and level of audience ‘trust’ in their content (Catsaras, 2015).

In order to mitigate any biases arising from the prior identification of dominant themes and narrative structures from the secondary literature, I used the single key search term ‘asylum’ during my initial search of all of the primary source material. Once the relevant data had been collected, the focus shifted to identifying recurring terms that are representative of the use of humanitarian language within the texts (such as “vulnerable,” “human,” “compassion,” “risk,” “moral,” and “save/ing lives”). The primary goal of this inductive approach was to assess both the immediate impact and the broader socio-political consequences of these texts and speech-acts on the policy-making process. Both data sets were then be used to compare and contrast the themes that were identified during the first data collection phase with the findings from the primary source material. As this thesis will demonstrate, this process constitutes the most appropriate method for discerning the important role that humanitarian arguments played in informing the content of both political and public debates on asylum seekers vis-a-vis the dominant securitised discourse on IMAs.

In accordance with the central CNR contention that agents play a crucial role in shaping the domestic meaning-in-use of international norms (Liese, 2009, p.20), this case study will focus on how political elites have influenced (and/or been influenced by) the trajectory of the asylum seeker debate in Australia since 1945. For the purposes of this thesis, the term ‘political elites’ will be broadly defined as “individuals [and] stable groups with disproportionate power [emphasis added] to affect national and supranational political outcomes on a continuing basis” (Best & Higley, 2018, p.3).

This definition is significant for two main reasons. First, it reinforces the argument that I made in Part 1 of this chapter that normative change at the state-level is not always driven by grassroots activists or transnational advocacy networks, but can also be promoted by political elites that have significant control over the policy formulation process. And second, it provides the necessary scope to further clarify Wiener’s assertion that invested stakeholders in liberal democratic institutions have regular and equal access to contestation. While significant sections of the Australian public had grown increasingly wary of the Pacific Solution by 2007, they did not comprise a movement with the requisite platform to demand substantive changes to Australia’s asylum seeker policy. Therefore, it 46 is imperative to first ascertain how political elites such as Labor Prime Minister Kevin Rudd utilised their political influence in order to engender a normative shift on IMAs, and how detractors such as Liberal Opposition leader Tony Abbott used their own positions of power in order to counteract it. Based on these considerations, I examined the texts and speech acts of key political figures as well as other relevant Members of Parliament (MPs) that were directly involved in political and public debates on the issue.19 These sources were selected according to their level of relevance and subsequent impact on the policy-making process on refugees and asylum seekers.

Data Analysis Methods

In addition to drawing on both the DHA and political legitimation models, I used a mixed methods approach to data analysis in order to affirm the central argument of this thesis that the Rudd Government’s humanitarian rhetoric significantly altered the trajectory of the asylum seeker debate between 2007 and 2013. According to Bryman (2015, p.645), one of the main benefits of incorporating both qualitative and quantitative methods into the overall research design is that it enables us to gain a more comprehensive understanding of the many variables that comprise complex social phenomena. Therefore, this approach constitutes the most appropriate method for demonstrating how this specific case study can help to address and subsequently ameliorate some of the conceptual gaps that were identified in both the conventional constructivist and CNR literatures.

(a) Single Case Study Analysis

For this thesis, I conducted a single case study analysis of Australia’s asylum seeker policy during the Prime Ministerships of Kevin Rudd (2007-2010, 2013) and Julia Gillard (2010-2013). There are a number of discernible benefits to using this specific qualitative method for the purposes of answering the research question/s. First, it provides the necessary scope for “examin[ing] contextual conditions to the fullest extent [by including] data about cultural, economic, social, and political conditions and trends” (Yin, 2012, pp.142-143). By providing an in-depth account of both the historical evolution and more contemporaneous dynamics of Australia’s political response to refugees and asylum seekers, both continuities and disruptions in narrative structures, behavioural patterns and policy formulation processes can consequently be more readily identified and assessed. Second, the case study approach constitutes the most appropriate method for addressing both the theoretical gaps

19 These key political figures include (but are not limited to) Labor Prime Ministers Kevin Rudd and Julia Gillard; Liberal Party Opposition leaders Malcolm Turnbull and Tony Abbott; Greens leaders Bob Brown and Christine Milne; Labor Immigration Ministers Chris Evans, Chris Bowen, Brendan O’Connor and Tony Burke; Shadow Immigration Ministers Dr. Sharman Stone and Scott Morrison; and Greens Senator and Immigration spokeswoman Sarah Hanson-Young. 47 in the norm contestation literature and the empirical literature on Australia’s asylum seeker policy by applying the conceptual framework to a practical setting.

However, this approach also has a significant limitation. While the discourse-analytical conceptual framework provides the necessary analytical tools in order to examine the findings, they cannot be conclusively verified unless they are compared with other cases in order to discern similar results. In order to mitigate this potential weakness, Chapter 6 includes a comparative component that seeks to ascertain whether the strategic utilisation of humanitarian arguments for exclusionary purposes has been limited to the Australian case, or whether it forms part of a broader ‘diffusion process’ where similarly rearticulated understandings of normative appropriateness have been adopted in other jurisdictions. By providing multiple empirical examples of how political elites around the world have increasingly drawn on the drownings argument in order to justify their hardline border protection policies, the key assumptions that were outlined in the introduction can be more readily supported.

(b) Mixed-Methods Approach

One of the main benefits of using the discourse-analytical conceptual framework is that it avoids the methodological weakness that arises from primarily relying on qualitative data by incorporating quantitative elements into its analysis. In addition to conducting a content analysis of the prevalence of humanitarian language in the texts and speech-acts of political elites, the thesis incorporates a number of statistical data-sets in order to situate them more effectively within the broader socio- political and historical contexts within which they were made. These include (but are not limited to) global refugee and asylum seeker populations, IMA numbers to Australia (by year of analysis), public opinion polls,20 legislation and case law, and electoral polling numbers (including during Federal Elections). By amalgamating this information into the overall discussion, it becomes possible to demonstrate that the norm contestation process is driven by the mutually constitutive interactions of agents, structures and relevant contexts.

While public opinion polls in particular provided an invaluable insight into how the Australian people viewed both Rudd and Gillard’s handling of the asylum seeker issue, the narrow lines of questioning and limited sample sizes meant that these polls were often not sufficient indicators of whether the Coalition’s strategic use of compassion rhetoric resonated with a significant proportion of the Australian public. Therefore, I also examined public commentaries on a range of online media reports from independent outlets such as the Guardian, Crikey, Eureka Street and the New Matilda in order

20 Such as the Lowy Poll, Newspoll, Age Poll, Galaxy Poll and Essential Report. 48 to assess the extent to which the drownings argument was replicated in the public sphere. I also examined the statements of a number of refugee advocacy groups and high-profile advocates21 in order to gain a better understanding of why they decided to repudiate their staunch opposition to offshore processing and support the reintroduction of the Pacific Solution.

Conclusion

This chapter has demonstrated that while post-Cold War constructivists broadly agree that ‘international norms matter,’ the question of how and when international norms actually engender policy change at the domestic level has been far more difficult to assess. By conceptualising the domestic implementation phase of the normative life-cycle as a relatively benign socialisation process, first-generation constructivists “downplay[ed] the fact that norms are generally contested and part of permanent processes of negotiation by which normative meanings are produced and transformed” (Engelkamp, Glaab & Renner, 2016, p.56). While the CNR literature has begun to address these conceptual gaps by emphasising that “any process of contestation will reflect a specific re/enacting of the normative ‘structure of meaning-in-use’,” these insights have yet to be subjected to rigorous empirical analysis (Wiener, 2009, p.176). The conceptual framework that was developed in part II this chapter in turn provides the necessary context for Chapter 2 of this thesis, which reviews and critically assesses the relevant literature on Australia’s asylum seeker policy.

21 Such as the Refugee Council of Australia and Asylum Seeker Resource Centre, and refugee advocates such as Robert Manne, David Manne and Julian Burnside. 49

Chapter 2

Making Sense of Australia’s Political Response to

Refugees and Asylum Seekers

Introduction

Much academic ink has been spilled in recent decades in order to gain a greater understanding of why Australia has opted to take a hardline stance on asylum seekers, and for good reason. Despite ratifying the Refugee Convention in 1954 and subsequently incorporating Articles 1A(2) and 33 domestically under the Migration Act,22 successive Australian governments since 1980 have implemented an increasingly punitive regime of (potentially indefinite) mandatory detention, offshore processing, and limited judicial review (Devetak, 2004; Francis & Caton, 2011; Newman, Dudley & Steel, 2008; Rowe & O’Brien, 2014, p.172). When viewed from a first-generation constructivist perspective, this is perplexing because Australia appears to be a prime example of a state that would take its human rights obligations seriously. In addition to being a consolidated liberal democracy that has taken active steps to embrace a more multicultural identity in recent decades, it has also sought to cultivate a cosmopolitan image as a ‘good international citizen’ and global norm promoter (James, 2014, pp.209- 210; McMaster, 2002a; p.279; Gibney, 2004, p.166; Vas Dev, 2009, p.43). Nevertheless, these factors have not precluded policy makers from consistently challenging the domestic applicability of international asylum seeker norms.

In order to gain a better understanding of the rationale that underpins Australia’s dichotomous political response to refugees and asylum seekers, I will undertake a thematic analysis of the relevant literature. Part I will outline the main analytical perspectives, theoretical orientations and political philosophies (post-structuralism, post-colonialism, public policy analysis, liberalism and constructivism) that scholars have drawn on in order to examine both the root causes and practical consequences of Australia’s hardline response to boat arrivals. Within these historical accounts, the

22 See introduction. 50 most common theme that has been identified by scholars is that Australia’s long-standing ‘invasion anxiety’ and embedded structures of racial discrimination and neoliberal exceptionalism have led political elites to characterise IMAs as the undesirable ‘Other’ that poses an existential threat to Australia’s territorial sovereignty, national security and social cohesion (McMaster, 2001, p.3; Vas Dev, 2009, p.39; Crock & Ghezelbash, 2010, p.248). I argue that while the available evidence readily supports the contention that these domestic barriers have created a ‘culture of control’ over the entry of non-citizens, the notion that they have remained relatively fixed since Federation obfuscates the fact that Australia’s compliance with international refugee and asylum seeker norms has varied over time.

Part II will focus more specifically on the rhetorical strategies that political elites have used in order to justify their normative stances on boat arrivals to the Australian public. Within the literature that examines the evolution of Australia’s asylum seeker policy framework since 1980, there is a prevalent view that these strategies are primarily centred on justifying the continued exclusion of asylum seekers by portraying them as criminal deviants, potential terrorists, economic migrants and ‘queue jumpers’ (Fozdar & Pedersen, 2013, p.372; Pickering & Weber, 2014; Gale, 2004, p.330; Billings, 2011; Driver, 2011; Saul, 2012). I further argue that while the available evidence clearly demonstrates that irregular migration became an increasingly prominent security issue after 9/11, the strategic use of compassion rhetoric for political purposes has not been limited to reinforcing the binary between ‘genuine’ refugees and ‘undeserving’ IMAs. Between 2007 and 2012, both Rudd and Abbott publicly expressed their concerns for the welfare of ‘vulnerable’ asylum seekers even though their political agendas on boat arrivals differed significantly during this period. The fact that this is not readily acknowledged within many contemporary analyses demonstrates that there is an ongoing tendency to underestimate the important role that humanitarian arguments have played in shaping the normative parameters of the asylum seeker debate (Chimni, 2000, p.244).

I. Australia’s Invasion Anxiety and the Exclusion of the ‘Other’

According to Peter Mares (2002, p.4), Australia “is a nation hostile to its foundations. For much of our brief history we have been preoccupied with controlling our borders to prevent the entry of others…we seem determined to keep out people who are willing to risk their lives to come here.” This statement encapsulates the dominant perspective among a significant number of scholars that the historical trajectory of Australia’s refugee and asylum seeker policies has been primarily driven by enduring concerns over the protection of its sovereign borders against perceived exogenous threats (Grewcock, 2008; Fleay, 2011, p.4; Pickering & Weber, 2014; Glendenning, 2015, p.32; Crock, 2010; 51

Waxman, 2000, p.71; S. Taylor, 2007, p.109; Marr & Wilkinson, 2003). By adopting a range of post- structural, post-colonial, public policy, liberal and constructivist perspectives, these analyses point out that Australia’s historically formed ‘invasion anxiety’ and embedded domestic structures of racial discrimination and neoliberal exceptionalism have led successive governments to characterise IMAs as the threatening ‘Other’ that must be deterred from reaching Australia’s shores (Vas Dev, 2009, p.36; A. Burke, 2008; Edgar, 2013; O’Doherty & Augoustinos, 2008, p.577; Lamey, 2011, p.37; M. Welch, 2014; Crock & Ghezelbash, 2010, p.248; Rowe & O’Brien, 2014, p.172; Hightower, 2015, p.337; Pedersen, Watt & Hanser, 2006, p.106).

Australia’s ‘Culture of Control’ over the Entry of Non-Citizens

According to Creek, the belief that “every state has an unrestricted right to determine whom it shall admit within its frontiers” has consistently informed Australia’s political response to asylum seekers (Creek, 2014, p.479). This statement reflects the broader view among numerous scholars that have examined the issue from a post-structural perspective that Australia has consistently sought to control the entry of non-citizens onto its sovereign territory (Crock, Saul & Dastyari, 2006, p.4; Grewcock, 2013, p.11; McDonough & Pringle, 2014, p.95; Richards, 2008, pp.378-379; J. Phillips, 2014). One of the key tenets of post-structuralism is that the territorial boundaries of states are defined by the “decisive demarcation between inside and outside [where] [t]he outside is alien and strange, mysterious or threatening” (Walker, 1993, p.174; Ringmar, 2016, p.102). As a result, their national identities are “constituted by an order [that is] dependent upon the marginalization and exclusion of other identities and histories” (D. Campbell, 2010, pp.224-225).

According to Anthony Burke, Australia’s hardline stance on irregular migration is primarily attributable to the historically formed ‘invasion anxiety’ that arose from its precarious position as the only Anglophone nation within a culturally disparate Asia-Pacific region (A. Burke, 2008, 4; Devetak, 2004, p.104; McKenzie & Hasmath, 2013, p.420; Edgar, 2013, p.9). These invasion fears have consequently “been central to hegemonic images of Australian security and identity” since 1901 (A. Burke, 2007, p.5). More recently, scholars have adopted a post-structural perspective in order to illustrate how these fears have become more pronounced in a post 9/11 landscape. As Dunn, Klocker and Salabay (2007, p. 569) point out, latent concerns over communist insurgents and Indochinese ‘boatpeople’ have given rise to heightened fears that IMAs will invariably bring the threat of global Islamic terrorism to Australia’s doorstep (see also Pedersen, Watt & Hanser, 2006, p.106; McAdam, 2013, p.436). While the specific targets of these threat perceptions may have changed over time, the enduring belief that asylum seekers pose an imminent threat “not only to the integrity of Australia’s borders, but to the national fabric as a whole” has essentially remained the same (McAdam, 2013, 52 p.435; Lamey, 2011, p.237; M. Welch, 2014, Every & Augoustinos, 2008, p.564; G. Martin, 2015, p.308; Canetti, Snider, Pedersen & Hall, 2016, p.601; Marr & Wilkinson, 2003, p.45; McMaster, 2001, p.50; McAdam & Purcell, 2008, p.92; W. Maley, 2001, p.353).

These heightened anxieties have consequently exacerbated long-held domestic perceptions that asylum seekers constitute the undesirable ‘Other’ that must be repelled at all costs in order to preserve Australia’s ‘way of life’ (D. Phillips, 2006, p.82; O’Doherty & Augoustinos, 2008, p.577; Crock & Ghezelbash, 2010, p.248; Pedersen, Watt & Hanser, 2006, p.106; Rowe & O’Brien, 2014, p.172; Hier & Greenberg, 2002; Edgar, 2013). While the term has not been explicitly used by political elites, it has been widely replicated within the academic literature on Australia’s asylum seeker policy in order to demonstrate that the characterisation of IMAs as existential threats is primarily aimed at maintaining a “frontie[r] between ‘insiders’ and ‘outsiders’” (Panizza & Miorelli, 2013, p.306; Esses, Medianu & Lawson, 2013, p.519; Pedersen, Attwell & Heveli, 2005, p.158; Gale, 2004, pp.321–322; Pickering, 2001, p.178). According to Slattery, Australian policy makers have consistently operated on the assumption that in order for “the government’s policies to remain legitimate and effective, there must be an ever-present threat [which] relie[s] upon the representation of an uncivilised and savage ‘other’” (Slattery, 2003, p.96; McMaster, 2001, p.3; Van Acker & Hollander, 2003, McKenzie & Hasmath, 2013, p.420 Kampmark, 2006). This in turn reflects the broader reality that “the rights of asylum seekers as non-citizens remain vulnerable as the needs of the political community remain prioritised” (Vas Dev (2009, p.39).

These considerations have led a number of scholars to assert that successive Australian governments since 1945 have maintained a stringent ‘culture of control’ over the entry of refugees and asylum seekers. According to Palmer, the Menzies Government’s accession to the Refugee Convention in 1954 was only brought to fruition when it no longer posed “any real threat to Australia’s ability to control the number and source of its refugee intake” (Palmer, 2009, p.292). Similarly, Marr and Wilkinson maintain that the Fraser Government’s decision to introduce the Humanitarian Program in response to the Vietnamese refugee crisis in the late 1970s was “absolutely in line with the underlying objective of tight control” by creating an orderly system for separating ‘genuine’ refugees from irregular migrants (Marr & Wilkinson, 2003, p.45; Stevens, 2012, pp.529, 531; Stats, 2015; K. Betts, 2001, pp.35-36; Schloenhardt, 2000, pp.36-37; Gibney, 2004, p.179; Fleay, 2011, p.2; McMaster, 2001, p.50). For McAdam and Purcell, the Keating Government’s introduction of the mandatory detention regime and the legislative codification of the ‘unlawful non-citizen’ in 1992 was primarily aimed at further consolidating “an immigration regime [that was] already preoccupied with domestic control over transnational human movement” (McAdam & Purcell, 2008, p.92; McMaster, 2001, 53 pp.60-61; J. Phillips & Spinks, 2013a). Finally, the statement by the then-Prime Minister John Howard in 2001 that “we will decide who comes to this country and the circumstances in which they come” (Howard, 2001c) has been cited by numerous scholars as an emblematic representation of Australia’s enduring preoccupation with maintaining complete dominion over its borders (Manne, 2013, p.18; Newman, Dudley & Steel, 2008, p.114; J. Howard, 2003, p.36; W. Maley, 2001, p.353).

The Multicultural ‘Myth’ and the Ongoing Battle for ‘White Australia’

Following on from this first point, the second theme that scholars that have taken a post-colonial perspective have identified is that Australia’s asylum seeker policy is also driven by the enduring effects of the racially discriminatory WAP that informed the policy-making process for much of the twentieth century (McMaster, 2002a, p.280; McKay, Thomas & Kneebone, 2011, p.115; Boese & M. Phillips, 2013; Fleay & Hoffman, 2014, p.6; Crock, 2010b; Canetti et. al.,2016, p.600; Haslam & Holland, 2012, p.108; O’Doherty & Augoustinos, 2008, p.579; Elder, 2003, p.223). While its official repudiation in 1973 reflected Australia’s evolving identity as an inclusive multicultural nation, its lingering effects can still be readily discerned in Australia’s treatment of asylum seekers (Tavan, 2005, p.220; James, 2014, p.209; McMaster, 2002a, p.279). Therefore, Australia’s ingrained fear of the ‘Other’ is as much attributable to its own colonial history as it is to exogenous forces because “the coloniality of power, and its attendant racialised knowledges, [are] still a central part of Australian policies and practices” (Tascón, 2004, 239-240).

When viewed from this perspective, the implementation of hardline asylum seeker policies can, as Ricatti asserts, be interpreted as the sustained efforts of political elites to “reinstate, consolidate and further promote the emotional privilege of whiteness as the core element of Australian moral superiority [and] national identity” (Ricatti, 2016, p.483; Newman, Dudley & Steele, 2008, p.113). Pugh attributes this phenomenon to a broader “'identity paranoia’ [that] can be traced to the colonial dehumanization of Aborigines [and] numerous scares about the 'yellow peril'” (Pugh, 2004, p.53), while Gale similarly argues that they form “part of a broader ‘discourse of Anglo-decline’ suggesting that there is a threat to the core values within contemporary Australia” (Gale, 2004, pp.321-322). Despite their insistence that Australia’s racially discriminatory history has been expunged from its national consciousness, political elites also, according to Robert Carr, continue to “pander to an element of popular xenophobia and ‘White Australian’ conceptions of which migrant/refugee groups qualify as ‘acceptable’” (R. Carr, 2010, p.4; Bashford & Strange, 2002, p.510). By highlighting cultural, racial and ideological differences between Australian citizens and IMAs, they not only perpetuate the view that asylum seekers pose a “threat to the government’s desired national identity,” 54 but also that they are manifestly incompatible with Australia’s prevailing socio-cultural standards (Vas Dev, 2009, p.39; Mummery & Rodan, 2007, p.350; S. Taylor, 2001, p.193; Louis, Esses & Lalonde, 2013, p.E157; Pedersen, Attwell & Heveli, 2005, p.158; Schloenhardt, 2000, p.34). Therefore, while Australia may have evolved over time from a racially homogenous state to a culturally diverse middle power, the continued application of deterrence-based border protection measures demonstrates that its asylum seeker policies are “not only colonially constituted but imperial in their contemporary operations” (Giannacopoulos, 2013, p.177).

In addition, a number of post-colonial scholars have pointed out that Australia’s hostile response to boat arrivals is not only driven by political elites, but is also the product of sustained public opposition to Australia’s multicultural identity (K. Betts, 1988, pp.141-142). According to Jupp, ongoing “popular fears of immigration and multiculturalism” were directly responsible for both the electoral success of Pauline Hanson’s anti-immigration One Nation party in 1998 and the widespread popular support that accompanied the Howard Government’s punitive Pacific Solution in the early 2000s (Jupp, 2007, pp.195-196. McMaster, 2001, p.4). The Tampa Crisis and 9/11 attacks not only exacerbated these racially-infused concerns, but also enabled Howard to capitalise on the “marked increase in anti-Muslim racism in Australia” in order to justify his hardline approach to asylum seekers (Gibbings, 2010, pp.17-18; Foster, 2012; p.398; Dunn, Klocker & Salabay, 2007, p.571). While neither Howard nor his Immigration Minister Philip Ruddock used overtly racist language, they nevertheless highlighted purported cultural differences between Anglo-Australians and non- European IMAs in order to emphasise their “incompatibility with mainstream Australian values” (Slattery, 2003, pp.101-102; Pugh, 2004, p.53). According to Corlett, these arguments in turn exemplify the ‘new racism’ that informs contemporary debates on IMAs, where cultural rather than racial differences have become the primary focal point of exclusionary asylum seeker narratives (Corlett, 2002, p.47).

Australia’s ‘Pervasive Climate of Hostility’ towards IMAs

The third theme that scholars that have examined the asylum seeker issue from a public policy perspective have identified is that Australia’s hardline response to boat arrivals is also attributable to ingrained public perceptions of IMAs that have “formed and firmed over a quarter of a century” (K. Betts, 2001, p.44). Since the political structures that underpin the liberal democratic apparatus are designed to serve as a conduit for responding to the needs of its citizens, policymakers must remain sensitive to the prevailing views within their constituencies (Knoepfel, Larrue, Varone & Hill, 2007, p.5; Thissen & Walker, 2013, p.1). A significant number of scholars have consequently argued that 55 successive Australian governments have opted to implement more robust border protection measures in order to secure votes and to strengthen their leadership position because “[e]lectoral support has remained strong for the harshest measures” (Creek, 2014, p.487; Tavan, 2005, p.221; McKay, Thomas & Blood, 2012; K. Betts, 1988, pp.141-142; Jupp, 2007, pp.195-196; McMaster, 2001, p.4; Schloenhardt, 2000, p.34; J. Fitzgerald, Curtis & Corliss, 2012, p.484; Klocker & Dunn, 2003). The perception that they “ignore public opinion on immigration [at] their peril” (Tavan, 2005, p.221) has, according to these analyses, engendered a strong bipartisan consensus that deterrence-based measures are both justified and necessary (Grewcock, 2013, p.11; McDonough & Pringle, 2013, p.95; Fleay, 2011; J. Phillips, 2014).

Within post-structural and post-colonial analyses, these negative perceptions are generally attributed to a range of underlying structural and historical factors that have remained relatively constant over time (Canetti, 2016, p.601; Kampmark, 2006; Lueck, Due & Augoustinos, 2015; Mummery & Rodan, 2007, p.348; Every & Augoustinos, 2008; Haslam & Holland, 2012). Researchers that have studied community attitudes on asylum seekers further affirm this view by asserting that public opinion polls have consistently shown that a significant number of respondents believe that IMAs are opportunistic criminals and culturally incompatible ‘queue jumpers’ (McKay, Thomas & Blood, 2011, p.605; Pedersen, Attwell and Heveli, 2005, pp.156-157; McDonough & Pringle, 2014, p.82; Haslam & Holland (2012), p.110; Goot & Watson, 2011, p.29). According to a survey that was conducted by McKay, Thomas and Kneebone (2011, p.123), the key themes that emerged from these responses were that asylum seekers exploit Australia’s democratic systems and processes, threaten Australia’s values and culture, and undermine the security of individuals, the community and the nation. These enduring threat perceptions consequently provide a crucial insight into why “anti-immigrant attitudes are difficult to shift” (Louis, Esses & Lalonde, 2013, p. E161).

A number of scholars that have examined the issue from a public policy perspective further argue that these negative perceptions are so deeply ingrained because they are intrinsic to both the individual characteristics and broader hierarchical structures that comprise Australia’s national identity (Pedersen, Attwell & Heveli, 2005, p.148; Louis, Esses & Lalonde, 2013). According to Mughan and Paxton (2006, p.342), individuals that display an enhanced sense of national identification are more likely to support the view that IMAs should not be accorded the same rights as citizens and are more willing to perpetuate “legitimising myths” on boat arrivals (see also Nickerson & Louis, 2008, p.79; Trounson, Critchley & Pfeifer, 2015, p.1642; Louis, Esses & Lalonde, 2013, p.E160). Similarly, Greenhalgh and Watt (2015) found that there is a correlation between perceived value dissimilarities between ingroups (Australians) and outgroups (asylum seekers) and the development of prejudicial 56 attitudes on boat arrivals (Greenhalgh & Watt, 2015, p.111). Therefore, the predilection of political elites to characterise asylum seekers as ‘Others’ is, according to McMaster (2002b, p.6), attributable to their responsiveness to the fact that “a large proportion of the Australian public [see] asylum seekers as [a] threat to national ‘purity’” (McMaster, Don, 2002b, p.6).

The Social Construction of Asylum Seeker Discourses

The fourth theme that scholars that have examined the issue from a constructivist perspective have identified is that political elites have consistently sought to take advantage of these ingrained negative perceptions by using alarmist rhetoric that portrays periodic increases in boat arrivals as existential crises in order to “present practices of exclusion and oppression as legitimate” acts of political power (Every & Augoustinos, 2007, p.413; Van Acker & Hollander, 2003; Every & Augoustinos, 2007; Mummery & Rodan, 2003). Rather than being the product of embedded ideational, structural and socio-political constraints, they argue that these policies are contingent on how successive Australian governments have opted to interpret the issue and subsequently present it to a domestic audience (Leach, 2003, p.26; P. Mares, 2002b, p.74).

According to McDonough and Pringle (2014, p.82), Australia’s invasion anxiety and subsequent preoccupation with protecting its sovereign borders from external threats is not innate to its national identity. Rather, it has been socially constructed by political elites who have “‘created’ not only an image of asylum seekers, but a mode of ‘being Australian’ [by perpetuating] a self-image of Australian citizens as fearful of illegal and possibly criminal intruders.” Gelber and Matt McDonald (2006, p.270) similarly point out that there is “nothing inevitable about conceiving of sovereignty in such terms [since it] reflects a series of choices on the part of the Australian government” (see also McNevin, 2007, p.612; Dickson, 2015, p.438). By enacting policies that promote the extraterritorialisation of immigration detention, political elites have, according to Dickson (2015, pp.439-440), played a crucial role in (re)constructing normative understandings on state sovereignty by periodically redrawing the territorial boundaries of Australia’s migration zone while reinforcing their symbolic importance to the public (see also M. Welch, 2014, pp.82-83; Hyndman & Mountz, 2008, p.251).

Haslam and Holland (2012, p.114) further assert that negative public attitudes on boat arrivals are not primarily borne from ingrained cultural biases and racial prejudices, but are rather attributable to the normative presumption by individuals that their views are shared by a critical mass of their peers which in turn creates a “consensus [that] these views are socially validated” (Kowert, 2012, p.38). These views do not develop independently, but are actively driven by political elites who propagate 57

‘false beliefs’ that asylum seekers are criminal deviants, economic opportunists and ‘queue jumpers’ (Pederson, Watt and Hanser, 2006, p.108). O’Doherty and Lecouteur (2007, p.2) argue that the compartmentalisation of asylum seekers into fixed categories is both counterintuitive and inappropriate because “every description is a construct [and] can be ascertained only by investigating the context in which [it] occurs.” Nevertheless, there is a prevailing view among scholars that have examined the issue from a constructivist perspective that successive Australian governments have opted to perpetuate negative characterisations of boat arrivals in order to justify their subsequent exclusion (Crock and Ghezelbash, 2011, p.102; Hightower, 2015, p.338; Rowe & O’Brien, 2014, p.176; G. Martin, 2015, p.307; Peterie, 2017, p.352).

The ‘Liberal Paradox’ in Australia’s Treatment of Refugees and Asylum Seekers

The final theme that scholars that focus on the rationale that informs Australia’s bifurcated policy framework on refugees and asylum seekers have identified is that its janus-faced interpretation of its international obligations is directly attributable to the fundamental tensions that underpin Australia’s liberal democratic identity (Basaran, 2015, p.206; James, 2014; Lamey (2011); McNevin, 2007; Schwellnus, 2009, p.130). While the principles of individual liberty, formal equality and distributive justice constitute the fundamental cornerstones upon which liberalism is based (Dauvergne, 1997, p.329), policy makers have consistently maintained that Australia’s normative obligations do not extend to self-selected migrants who ‘jump the queue’ by circumventing formal processing procedures (Crock, Saul & Dastyari, 2006, p.8; Lamey, 2011, p.238; Brennan, 2016, p.57; Anderson, 2010, p.938; Mansouri, Leach & Nethery, 2009, p.135). Therefore, Australia’s hardline response to boat arrivals is not only attributable to historically formed invasion anxieties or ingrained racial prejudices, but also to the belief that asylum seekers are “morally antithetical to Australian egalitarianism” (Every and Augoustinos, 2008, p.574; Kampmark, 2006, p.2).

According to Neumann (2009, p.60), the entrenched view that “Australia and Australians have traditionally been generous and compassionate” towards refugees has played a crucial role in enabling successive Australian governments to legitimate the implementation of increasingly punitive border protection policies (see also Pennington-Hill, 2014, p.588; O’Doherty & Lecouteur, 2007, p.1). By maintaining that boat arrivals subvert the liberal principles of fairness and transparency due to their mode of arrival, political elites perpetuate the view that they “exploit our compassion” for personal gain (McKenzie & Hasmath, 2013, p.420). During the ‘Children Overboard’ affair, the Howard government argued that the IMAs did not deserve a fair go on the basis that ‘ordinary’ Australians would never be so callous as to throw their own children in the water in order to compel 58 a rescue (Peterie, 2016, p.439; Slattery, 2003, p.102; Klocker & Dunn, 2003 p.72). These principles also inform the attendant argument that asylum seekers appropriate valuable resources that would otherwise have been distributed to Australian citizens (G. Martin, 2015, p.316; Haslam & Holland, 2012, p.114-115; Every, 2013, p.680). As Kampmark (2006, p.16) points out, the portrayal of IMAs as ‘economic opportunists’ and ‘welfare cheats’ is specifically designed to invoke the motif of the ‘Aussie battler’ in order to demonstrate that they “undermine the legitimate entitlements [of] Australians” (see also Peterie, 2016, p.438; McNevin, 2007, p.616; Stratton, 2009; Lueck, Due & Augoustinos, 2015, pp.624-625).

These arguments in turn foster the perception that asylum seekers impinge on Australia’s goodwill in a manner that is both “unreasonable and excessive” (Every, 2008, pp.219-220; Ruddock, 2000, p.4). According to Every, the argument that it has “gone above and beyond the call of duty” (Every, 2008, p.220) when it comes to fulfilling its international obligations to refugees has enabled political elites to stave off criticism of its hardline response to boat arrivals by maintaining that it comprises a “sensible, balanced response to limitless need” (Every, 2008, 216). In contrast, IMAs are characterised as unwelcome intruders that actively impede Australia’s ability to fulfil its normative obligations under the Refugee Convention by taking assigned places from ‘genuine’ refugees (see Part II for a more detailed analysis) (Van Acker & Hollander, 2003, pp.109-110; Manderson, 2013, pp.6-7; Gale, 2004, p.328; O’Doherty & Lecouteur, 2008, p.1; McMaster, 2002a, p.279). As Watson (2015, p.357) points out, this argument reflects a broader trend among liberal democratic states to argue that restrictive asylum seeker policies “may in fact be necessary to maintain humanitarian policies” for refugees (see also Every & Augoustinos, 2007, p.215).

By drawing on a wide range of analytical perspectives and theoretical orientations, these scholars have provided a comprehensive overview of the ideational, socio-political, structural, institutional and broader historical factors that have influenced the trajectory of Australia’s refugee and asylum seeker policies since 1901. Nevertheless, Part I has also shown that there is a tendency within some portions of the literature to replicate the assertion by first-generation constructivists that these domestic variables have remained relatively constant over time. As a result, they are often characterised as impenetrable barriers to the further implementation of international asylum seeker norms. Australia’s hardline response to boat arrivals has consequently been attributed to four main causal factors. These include: (1) that it is primarily driven by enduring domestic fears that IMAs constitute the threatening ‘Other’ that poses an existential threat to its territorial integrity, national security, and social cohesion; (2) that these threat perceptions have remained relatively fixed over time, even if the targets and specific arguments that have used in order to reinforce them have 59 changed; (3) that public opinion on boat arrivals has remained implacably negative over the last few decades; and (4) that political elites have justified their punitive asylum seeker policies by arguing that IMAs undermine the principles that comprise Australia’s liberal democratic identity.

These perspectives in turn inform the overall conclusion within many of these analyses that “[a]s a nation, we ha[ve] moved no distance” from the exclusionary narratives that have informed Australia’s border protection regime since Federation (A. Burke, 2007, p.4; McMaster, 2002b, p.3; Kampmark, 2006, p.3; Briskman, 2013, p.11). However, I argue that this view does not provide the necessary scope for examining why Rudd nevertheless opted to challenge take Australia’s asylum seeker policy in a more humanitarian direction in 2007. Rather, it reifies the tendency among first-generation constructivists to advance a static interpretation of the normative life-cycle by asserting that international asylum seeker norms are manifestly incompatible with the “historically formed ideologies [and] structure of political discourse” in Australia (Finnemore & Sikkink, 2001, p.407). As Part II will demonstrate, this reflects the broader problem that negative and dehumanising characterisations of asylum seekers are generally considered to be the primary drivers of the asylum seeker debate. By situating both exclusionary and humanitarian arguments within the broader securitisation framework on asylum seekers, the normative implications of Rudd’s expressed concern for the ‘vulnerable stranger’ have consequently yet to be subjected to rigorous analysis.

II. The Securitisation of Irregular Migration

Chapter 1 pointed out that the end of the Cold War led to a renewed optimism among constructivist scholars that international human rights norms would become the dominant paradigm in informing state behaviour in an increasingly globalised and democratised world. However, as territorial borders became more porous and the number of global asylum applications significantly increased, states became increasingly prolific in portraying irregular migration as a prominent security issue. As a result, scholars have increasingly drawn on securitisation theory in order to explain how political elites in Australia have strategically used language and rhetoric in order to exacerbate domestic concerns over boat arrivals. According to Matt McDonald (2011, p.283), securitisation refers to “the process whereby through speech acts – and audience acceptance – particular issues come to be conceived and approached as existential threats to particular political communities.” Whereas asylum seekers used to be viewed as a non-traditional security issue, it has increasingly been cast in traditional security terms as political elites have increasingly focused on strengthening Australia’s border protection regime in order to disrupt people smuggling operations (S. E. Davies, 2017, p.111). Since these threat perceptions are socially constructed (Louis, Esses & Lalonde, 2013, p.E157), agents must 60 first persuade their target audience that their claims are legitimate, a prerequisite that becomes even more imperative in liberal democratic states where these views cannot be readily imposed (Watson, 2009, p.19). The securitisation agenda therefore provides scholars with a useful analytical framework for examining why political elites have characterised boat arrivals as criminal deviants, potential terrorists, economic opportunists and ‘queue jumpers.’

Barbaric Hordes, Criminal Deviants, and Unassimilable Outsiders

Within the academic literature on Australia’s asylum seeker policy, scholars have identified a range of rhetorical strategies that policy makers have used in order to perpetuate the view that IMAs constitute an existential threat. By consistently using alarmist language that describes periodic increases in boat arrivals as “waves,” “floods” or “tides,” both political elites and the media have been instrumental in reinforcing the perception that IMAs pose an immediate danger to Australia’s borders ((Leach, 2003, p.26; Pickering, 2001, p.172; Klocker & Dunn, 2003, p.72). This negative portrayal of asylum seekers as “enemies at the gate [who] are attempting to invade Western nations” (Esses, Medianu & Lawson, 2013, p.519) in turn enables them to maintain a “pervasive climate of hostility” against boat arrivals (Fozdar & Pedersen, 2013, p.372; Pickering & Weber, 2014; Gale, 2004, p.330; Pederson, Attwell & Heveli, 2005, p.158; Gale, 2004, pp.321-322; Pickering, 2001, p.178). As Lumby and Funnel (2011, p.278) point out, the resulting “moral panic” among the Australian public is consequently based on the shared perception that the fundamental values upon which Australia’s national identity is based are on the verge of being destroyed (see also Manderson, 2013, p.7; McKay, Thomas & Blood, 2011, p.612). The discursive construction of asylum seekers into an existential threat therefore provides a justificatory basis for the continued implementation of hardline asylum seeker policies in order to mitigate “the dangers of an invasion” (Manne, 2013, pp.19-20; Slattery, 2003, p.93; P. Mares, 2002b, p.75).

The existential threat narrative became even more pronounced when the ‘Tampa Crisis’ and 9/11 attacks placed the asylum seeker issue firmly at the forefront of Australia’s security agenda in 2001. According to Gibbings, the hysteria that accompanied these events prompted the Howard government to assert that asylum seeker boats could potentially harbour Islamic extremists (Gibbings, 2010, pp.17-18; Foster, 2012, p.398; Dunn, Klocker & Salabay, 2007, p.571; Leach, 2003, p.29). In addition to reinforcing the perception that IMAs constitute a grave threat to Australia’s national security, Kampmark (2006, p.7) asserts that these arguments were aimed at exacerbating the “popular view [that] all refugees are potential terrorists” (see also McKay, Thomas & Blood, 2011, p.609). This in turn enabled Howard to legitimate the punitive measures that underpinned the Pacific Solution by 61 maintaining that it had to “clamp-down on border protection against boat people [in order] to combat terrorism” (Philpott, 2002, p.66). According to McCullogh and True (2014, pp.371-372), these arguments significantly enhanced these existential threat narratives by constructing asylum seekers as “threats to national security in ways that engage the military apparatus” (see also K. Phillips, 2009, p.132; W. Maley, 2016, p.673).

These developments were also accompanied by a marked increase in what scholars have broadly termed ‘crimmigration’ rhetoric, which concerns the strategic use of language that highlights the purported criminal deviancy of asylum seekers (M. Welch, 2014, p.82; Van Berlo, 2015, p.78; Fozdar & Pedersen, 2013, p.372). By consistently using prohibitive terminology such as “illegals,” “unauthorised arrivals” and “unlawful non-citizens,” political elites have turned the act of seeking asylum into a criminal endeavour (O’Doherty & Lecouteur, 2007, p.6). Moreover, by issuing statements that directly link boat arrivals with violent crime, they have actively promoted the view that IMAs are more likely to engage in illegal activities such as joining gangs and forming organised crime rackets (Mummery & Rodan, 2007, pp. 350-351; Pickering, 2003, p.172). As Every and Augoustinos point out (2008, p.566), the primary aim of these assertions is to send a clear message that asylum seekers pose an unacceptable “threa[t] to law and order” even after they have been resettled in Australia (see also Clyne, 2005, p.183). Since these “[t]hemes of illegitimacy and illegality [also] feature prominently in the public’s views of asylum seekers” (Haslam & Holland, 2012, p.115), they constitute an effective barrier to the further implementation of international asylum seeker norms.

Another facet of the crimmigration argument is that IMAs are not victims of persecution, but rather willing participants in a criminal enterprise by actively seeking out the services of people smugglers (Cameron, 2013, p.241; Van Acker & Hollander, 2003, p.104; Pickering, 2001, p.179; Clyne, 2005, p.184). While asylum seekers are generally not the central subjects of this narrative, the “the taint of criminality is extended to the[m]” through the belief that the people smuggling trade is driven by demand rather than supply (Van Acker & Hollander, 2003, p.107; P. Mares, 2002a, p.16). According to Pickering and Lambert (2003, p.65), the primary aim of this argument is to portray asylum seekers as “parasites [who] mak[e] a choice to subvert appropriate procedures and hence collud[e] in their own illegality” (see also Rowe & O’Brien, 2014, p.172; Every & Augoustinos, 2007, p.4; Greenhalgh & Watt, 2015, p.111). 13). This not only perpetuates the notion that asylum seekers are mainly economic opportunists who often spend vast sums of money in order to reach their chosen destination, but also adds another layer of complexity to narratives that contend that external forces (such as transnational organised crime) constitute a significant threat to the nation-state (S. Taylor, 2007, 62 p.110; M. Welch, 2014, p.82; Rowe & O’Brien, 2014, p.184; W. Maley, 2001, p.107; Cameron, 2013, p.241). The crimmigration argument therefore not only provides a rationale for morally questionable policies such as mandatory detention, but also serves as a justification for the prison-like facilities that have been widely condemned for violating the basic human rights of asylum seekers (Fleay & Hoffman, 2014, pp.5-6).

These negative characterisations in turn perpetuate the view that asylum seekers are “less human [and] thus less deserving of humane treatment” (Greenhalgh & Watt, 2015, p.111). According to Pugh (2004, p.52), both political elites and the media have consistently sought to demonstrate that IMAs are incompatible with the socio-cultural standards that comprise Australia’s national identity by depicting them as faceless, unidentifiable masses (see also Klocker & Dunn, 2003, p.72). By using impersonal collective terms such as “boatload” and “cargo,” both the humanity and bodily autonomy of asylum seekers is diminished by reducing them to chattels (Clyne, 2005, p.181). In their study of visual depictions of IMAs in media reports, Bleiker et al similarly found that two-thirds of the examined images focused on medium to large groups, while only 2% depicted asylum seekers with individually recognisable facial features (Bleiker, D. Campbell, Hutchison & Nicholson, 2013, p.399). The strategic utilisation of impersonal imagery not only exacerbates existing fears that asylum seekers pose an existential threat that is both immediate and omnipresent, but also decreases public sympathy by creating an emotional distance between them and the public in order to make their lives less “‘grievable’ and worthy of compassion” (Bleiker et al, 2013, pp.399-400).

These rhetorical strategies lend further support to the dominant view within the academic literature that the asylum seeker debate is primarily driven by exclusionary narratives that are centred on hostile and dehumanising representations of asylum seekers as criminal deviants, economic opportunists and culturally incompatible ‘Others’ (de Lint & Giannacopoulos, 2013, p.620; Clyne, 2005; Gale, 2004, pp.321-322; McDonough & Pringle, 2013, p.95). As Chapter 3 will demonstrate, the second ‘wave’ of boat arrivals in 1989 was accompanied by a marked increase in hostile and alarmist rhetoric by political elites from both major parties in order to provide a justificatory basis for the implementation of increasingly hardline border protection policies. However, I argue that by primarily focusing on the strategic utilisation of deterrence-based arguments, the question of why Rudd used humanitarian language in order to transform “‘undeserving’ IMAs [from] unworthy to worthy objects of compassion” in 2007 has not been sufficiently explored (Peterie, 2007, p.352). As the next section will demonstrate, the assumption that the utility of humanitarian rhetoric is largely limited to perpetuating the binary between ‘genuine’ refugees and ‘illegitimate’ asylum seekers does not 63 account for why welfare-centric arguments played an increasingly central role in the asylum seeker debate during the Rudd/Gillard era.

The Humanitarianisation/Securitisation Nexus

In his election victory speech in 2001, Howard declared that while “we are a generous open hearted people taking more refugees on a per capita basis than any nation except Canada…we will decide who comes to this country and the circumstances in which they come” (Howard, 2001c). The statement constituted both an affirmation of Australia’s compassionate stance on refugees, and a justification for its punitive treatment of boat arrivals. A number of scholars have consequently argued that the consistent invocation by successive Australian governments of its humanitarian credentials is primarily aimed at diminishing the normative claims of IMAs by emphasising that its empathy should be limited to individuals that have proven that they are fleeing from state-sponsored persecution.

According to Rowe and O’Brien (2014), successive Australian governments have sought to stave off criticisms over its differential treatment of refugees and asylum seekers by maintaining that “genuine” UNHCR-recognised refugees that arrive through the “proper channels” are more deserving of Australia’s protection than “illegitimate” boat people who reach Australia’s shores by irregular means (Rowe & O’Brien, 2014; Creek, 2014, p.486; Pedersen, Watt & Hanser, 2006, p.114; Capdevila & Callaghan, 2008, pp. 9-10). The ‘queue jumper’ argument not only challenges the assumption that the scope of Australia’s international obligations extends to boat arrivals, but also creates a two-tiered system where refugees who “wait patiently until it is their ‘turn’” in offshore camps are rewarded with resettlement, while IMAs who circumvent Australia’s formal processing procedures are penalised for “breaking the rules” (Gelber, 2003, p.26; Juss, 2012, p.6; McKay, Thomas & Kneebone, 2011, p.115; Bleiker et. al, 2013; Every, 2008; Mares, 2002, p.18). While this argument is ‘humanitarian’ insofar as it acknowledges the normative claims of refugees, Goodman and Speer (2007, p.166) point out that the binary between ‘genuine’ refugees and ‘bogus’ IMAs is primarily aimed at ensuring that the latter are “seen as undeserving of sympathy and support” (see also McKay, Thomas & Kneebone, 2011, p.114; Every and Augoustinos, 2007, p.412; Parekh, 2014, p.648; Billings, 2011, p.276; Peterie, 2017, pp.356-357).

There is no question that the ‘queue jumper’ argument has played an important role in exacerbating negative public perceptions on boat arrivals whilst also providing a justificatory basis for the continued implementation of hardline border protection policies on the basis of relative humanitarian need (Pedersen, Atwell & Heveli, 2005, pp.154-155; Saul, 2012, pp.15-16; Boese & Phillips, 2013). 64

As Chapter 3 will further demonstrate, the introduction of the Humanitarian Program in 1977 and subsequent bifurcation of Australia’s refugee policy into two separate normative frameworks led both the Hawke/Keating and Howard governments to increasingly maintain that boat arrivals were actively impeding their ability to assist UNHCR-verified refugees that were languishing in offshore camps. However, I argue that there is a resulting tendency within these analyses to maintain that the use of victim-centric language has been limited to the claim that IMAs harm the welfare of both refugees and ‘ordinary Australians’ by appropriating resettlement places and valuable resources. As a result, humanitarian arguments have been largely subsumed within the broader securitisation literature (Little-Vaughn & Williams, 2017, p.9). Rudd’s publicly expressed concern for the ‘vulnerable stranger’ is consequently characterised as a minor deviation from the hardline rhetoric that has underpinned Australia’s asylum seeker policy since 1980 (Millbank, 2009, p.8; P. Kelly, 2014, p.178; Burnside, 2014, p.13; Pastore, 2013, p.621).

This point is readily demonstrated by the prevalent view within the more recent literature on Australia’s asylum seeker policy between 2007 and 2013 that Rudd’s moral proselyting on asylum seekers constituted nothing more than a strategic ploy to capitalise on Howard’s waning popularity during the 2007 Federal Election (Stats, 2017, p.222; P. Kelly, 2014, p.178; Crock, 2010, p.2; Toohey, 2014, p.20; Millbank, 2009, p.8). Therefore, Rudd’s “short-lived compassion” and subsequent repudiation of his humanitarian stance was, according to Greg Martin (2015, p.307), primarily attributable to the fact that he had never intended to challenge the dominant securitised discourse on asylum seekers (see also Toohey, 2014, p.9; Herold, Kortt & Dollery, 2016, p. 242). Conversely, Grewcock (2013, p.14) and Crock and Ghezelbash (2010, p.239) argue that the gradual reintroduction of the Pacific Solution was primarily due to structural, ideological and institutional constraints that had made the re-emergence of a hardline stance on boat arrivals largely inevitable. According to Briskman (2013, p.12), the rising IMA numbers in 2009, Jaya Lestari 5 and Oceanic Viking stand- offs and Christmas Island disaster23 had rendered it politically untenable for both Rudd and Gillard to sustain Labor’s humanitarian platform on asylum seekers as the socio-political climate became increasingly hostile. McKay, Thomas and Kneebone similarly maintain that Rudd’s plummeting popularity in public opinion polls meant that the government “was forced to be ‘seen to be doing something’” by implementing increasingly punitive border protection measures (McKay, Thomas & Kneebone, 2011, p.610). Therefore, Labor’s policy reversals constituted an “entirely reactive” response to the growing domestic consensus that it was directly responsible for Australia’s latest ‘boat people crisis (Mulligan, 2010, p.17; Lueck, Due & Augoustinos, 2015, p.614).

23 See Chapters 4 and 5. 65

As a result, there is a tendency within the more recent analyses to argue that the Rudd government’s policy changes were ultimately inconsequential because they “did not mark the end of the institutional exclusion of unauthorised migrants [but rather] sustain[ed] the[ir] alienation, criminalisation and abuse” (Grewcock, 2008, p.363; Herold, Kortt & Dollery, 2016, p.232; Pert, 2014, p.192; Crock & Ghezelbash, 2011, p.105). While Crock (2010a, p.3) argues that Labor’s 2008 policy changes “were neither radical [nor] alter[ed] the mainstays of the structures set up under the Coalition” (see also Aulich, 2010, p.8; Pert, 2014, pp.192-193), Francis and Caton (2011, p.172) maintain that the Rudd Government’s failure to fully repudiate the Howard government’s asylum seeker policy framework was primarily attributable to the fact that “successive Labor governments have sought to make full use of them.” As a result, the Labor’s gradual reintroduction (and subsequent expansion) of the Pacific Solution not only constituted a “predictable response” to the sudden increase in boat arrivals in 2009 (Garnier & Cox, 2012), but also, according to Fleay, “once again reflected long-held Australian desires to control and ultimately deter the arrival of further boats” (Fleay, 2011, p.4; L. Taylor, 2013).

The Politics of Compassion Rhetoric

The most recent analyses on Australia’s asylum seeker policy have begun to acknowledge the important role that victim-centric asylum seeker narratives played in informing domestic debates on the issue during the Rudd/Gillard era. In their analysis of media reporting on the issue during the 2013 Federal Election, Muytjens and Ball (2016, p456) found that the oft-repeated argument by news outlets such as the Australian that stronger borders ‘saved lives’ was directly aimed at neutralising criticisms that Australia’s hardline policies harmed the welfare of IMAs. By “positioning [the] government’s asylum seeker policies as compassionate, the underlying message is that such policies cannot possibly be injurious, or, if they [are], these injuries are only minimal and entirely justified” (Muytjens & Ball, 2016, p.456). According to James, this reflects the contemporary reality that while border control mechanisms in Australia continue to be “given effect by a mode of organization framed by instrumental rationality…[the] vision of engagement is projected by a rhetoric of humanitarian concern and good policing” (James, 2014, p.210).

According to Peterie (2017, p.357), the use of compassion rhetoric also had the broader strategic purpose of reinforcing existing power imbalances by portraying IMAs as hapless victims of a criminal enterprise. The transformation of asylum seekers “from Australia’s Other into worthy recipients of compassion [also] transformed them from autonomous agents to victims” (Peterie, 2017, p.357), a process that inevitably “denied [them] the nuance and autonomy of full humanity” (Peterie, 2017, p.361). McKenzie and Hasmath (2013, pp.420-421) similarly maintain that while “asylum seekers 66 were commonly framed in a more sympathetic light [as] people who were ‘desperate’ and the ‘victims’ of people smugglers…[they] nonetheless remained delegitimised through judgements made of their deservingness” (see also Manderson, 2013, p.4). By invoking the drownings argument in order to justify the reintroduction of deterrence-based measures, the primary goal of political elites during this period was, according to de Lint and Giannacopoulos (2013, p.624), to “und[o] the basis of humanitarianism in respect for life in itself by restricting the measure of the life that must be saved.”

While these assertions are correct, I argue that they are also problematic for several reasons. First, by focusing specifically on the subjective intentions of both Rudd and Gillard and/or the practical implications of Labor’s asylum seeker policy changes, both the root causes and broader consequences of Australia’s normative shift on IMAs in 2007 have remained under-examined. As a result, these contemporary analyses have yet to provide a comprehensive account of why Rudd was able to gain domestic support in for his claim that the Pacific Solution was morally reprehensible and fiscally irresponsible and subsequently gain bipartisan support in order to (partially) dismantle it. These developments not only call into question the frequently cited claim that both political and public attitudes on boat arrivals have remained implacably hostile over the last few decades, but also highlights the importance of acknowledging that the domestic meaning-in-use of international asylum seeker norms in Australia has been both variable and context-specific.

Second, by asserting that the primary purpose of these humanitarian arguments was to reinforce negative perceptions of boat arrivals by turning them into objects of pity and disdain, these contemporary accounts often perpetuate the notion that Australia’s asylum seeker policy is underpinned by largely unbroken narratives of deterrence and exclusion. However, Chapters 4 and 5 will demonstrate that Rudd’s rearticulation of the domestic meaning-in-use of international asylum seeker norms not only altered the discursive parameters of norm contestation process, but also prompted his opponents to refine their political agendas by drawing more readily on welfare-centric arguments. When boat arrivals once again began to increase in 2009, Coalition leader Tony Abbott increasingly appropriated Rudd’s concern for the ‘vulnerable stranger’ by claiming that Labor’s policy changes had actively encouraged IMAs to risk their lives at sea. While the drownings argument resecuritised Australia’s asylum seeker policy by engendering a renewed bipartisan consensus that hardline border protection measures were both justified and necessary, it was not attained through hostile representations of IMAs as the threatening ‘Other.’ Rather, it was the direct product of the increasingly prolific use of victim-centred language by both Labor and the Coalition in order to both defend and challenge their right to seek asylum in Australia. The fact that the reintroduction of the 67

Pacific Solution was primarily justified on humanitarian terms therefore demonstrates that these arguments constitute stand-alone narratives, rather than adjuncts, to the broader securitising discourse on asylum seekers.

Finally, this review of the available literature on Australia’s asylum seeker policy demonstrates that while scholars have advanced a comprehensive account of the agent-driven, socio-political, structural, institutional and broader historical variables that have informed Australia’s political response to boat arrivals, less emphasis has been placed on how they interact in order to engender normative change at specific points in time. Labor’s normative shift on asylum seekers in 2007 is generally portrayed as an aberration that was immediately rectified when Rudd’s humanitarian stance was no longer politically tenable. However, I argue that greater attention needs to be paid “to the discursive practices that give significance to these [policy] changes, rather than treating them as changes that would inevitably produce identifiable and predictable consequences” (Watson, 2009, 18). Therefore, this thesis will advance a more multi-faceted analysis of how the rhetorical strategies that political elites adopted in order to legitimate their policy responses on boat arrivals influenced the trajectory of the asylum seeker debate between 2007 and 2013.

Conclusion

This literature review has illustrated that while there is a prevalent view among scholars that have examined Australia’s asylum seeker policy that political elites have consistently justified their hardline response to boat arrivals by portraying them as existential threats and undeserving ‘Others,’ “relatively little attention has been paid [to] the ways in which these dynamics have become accompanied by, and increasingly justified in the name of, specifically humanitarian discourses” (Little & Vaughn-Williams, 2016), p.9). As Part II demonstrated, the utility of these arguments has generally been limited to examining how they perpetuate negative representations of asylum seekers by categorising them as being either undeserving of Australia’s compassion or the passive victims of people smugglers. However, I argue that humanitarian discourses only played a crucial role in shaping the responses of both political elites and the public during the Rudd/Gillard era, but have also been a constant feature of domestic debates on both refugees and asylum seekers since 1945. As Chapter 3 will demonstrate, the use of compassion rhetoric as a means of either endorsing or refuting Australia’s international obligations to refugees and asylum seekers has been far from atypical. By situating these arguments within the broader historical context within which they were promulgated, I will demonstrate that Australia’s level of compliance with these norms has not remained static, but has rather oscillated over time in response to variable political interpretations of normative meaning, 68 evolving domestic structures and institutions, and broader international developments that (re)shaped collective understandings of legitimate standards of behaviour.

Chapter 3

A Historical Overview of

Australia’s Refugee and Asylum Seeker Policies

Introduction

In November 1996, newly elected Prime Minister John Howard delivered a speech where he declared that “[i]t is from our history that we can understand the scale of what our predecessors achieved [and] it is from our history that the elements of both continuity and evolution [become] apparent” (Howard, 1996). The practical consequences of these words would soon become apparent as the Howard government implemented what would become one of the most hardline asylum seeker policies in the world. However, while the introduction of the Pacific Solution in 2001 ostensibly continued Australia’s long-standing tradition of characterising asylum seekers as the threatening ‘Other,’ I argue that these developments were neither inevitable nor unavoidable. When Liberal leader Malcolm Fraser was similarly faced with having to accommodate a sudden influx of Indochinese asylum seekers after the fall of Saigon in 1975, his initial dismay at their arrival was tempered by his moral conviction that his government had a responsibility to pursue “a humane and compassionate policy where support is given to those in distress” (Fraser, 2011).

This chapter will trace the historical evolution of Australia’s refugee and asylum seeker policies between 1945 and 2006. I will demonstrate that while the findings largely affirm the dominant scholarly perspective that successive governments since 1980 have justified their increasingly punitive response to boat arrivals by differentiating between ‘genuine’ refugees and ‘queue jumping’ asylum seekers, they also reinforce the dynamic nature of the norm contestation process. Over the last seven decades, the domestic meaning-in-use of international refugee and asylum seeker norms has consistently shifted and evolved due to the mutually constitutive interactions of agents, structures and contemporaneous contexts. In the late 1970s, Fraser drew on both his staunch anti-communist stance and broader political objective of preventing a ‘domino effect’ in the Asia-Pacific region in order to legitimate his argument that Australia had a duty to resettle thousands of Indochinese boat 70 arrivals on the basis that they were the “wretched victims of communism” (Fraser, 1979b). At the same time, his ability to justify his position to the Australian public also depended on the presence of a more amenable socio-political environment as the incremental abolition of the WAP had created a more racially diverse demographic (Fraser, 1978). Conversely, Howard’s public repudiation of multiculturalism and characterisation of asylum seekers as economic opportunists and ‘queue jumpers’ resonated with voters as the ‘second wave’ of boat arrivals in 1989 fuelled public concerns over their presence on Australian soil. When the Tampa Crisis and 9/11 attacks further exacerbated these domestic anxieties in 2001, Howard capitalised on them in order to fortify his argument that it was in the ‘national interest’ to secure Australia’s borders against external threats (McMaster, 2002a, p.286; O’Doherty & Augoustinos, 2008, p.577; Brett, 2007).

I. The Normative Evolution of Australia’s Refugee Policy – 1945 to 1979

Between 1901 and 1945, Australia’s policy towards ‘aliens’ was primarily informed by the overarching desire to retain the fledgling nation’s racial and cultural homogeneity by actively discouraging non-British immigration.24 The Commonwealth Immigration Restriction Act 1901 (Cth), which gave legislative effect to what became known as the White Australia Policy (WAP) significantly curtailed the ability of ‘prohibited’ immigrants to settle in Australia (s3(a)). Moreover, since there was no specific legislative framework for determining who qualified as a refugee, they were generally selected on the basis of their racial characteristics, level of assimilability, and ability to provide for their own passage rather than humanitarian need (Neumann, 2015, pp.1-2). While the bipartisan political consensus that underpinned the WAP ensured that non-British migrants were largely excluded from entering Australia during this period (Tavan, 2005, p.8-9), its isolated geographical position also largely prevented unauthorised arrivals from entering its sovereign territory without prior approval (Neumann, 2005, p.26; Richards, 2008, p.146).

However, Australia’s restrictive immigration policy also underwent a significant transformation in 1945 when over 12 million European refugees found themselves in desperate need of resettlement after WWII (Richards, 2008, p.185). In order to address chronic labour shortages, the Chifley government (under the auspices of Immigration Minister Arthur Calwell) began to diversify its immigration portfolio by including non-British European migrants and displaced persons (DPs) in its resettlement program. While the racially homogenous policies that underpinned the WAP were retained, these changes fundamentally altered the composition of Australia’s socio-cultural demographic (Neumann, 2005, p.32). These developments in turn set in motion a normative shift that

24 The Aliens power is enshrined under section 51(xix) of the Commonwealth of Australia Constitution Act 1901 (Cth). 71 led policy makers to increasingly acknowledge that Australia had a positive obligation to assist victims of persecution (albeit under highly controlled circumstances).

Arthur Calwell and the Expansion of Australia’s Immigration Program

By 1945, Australia had reached a critical juncture in its foreign policy. After decades of relying almost exclusively on Britain to secure its position in the Asia-Pacific region, the Japanese bombing of Darwin in 1942 had exposed Australia’s vulnerability to external attack (Richards, 2008, p.143-144). Moreover, immigrant numbers from Britain had begun to plateau at a time when chronic labour shortages were adversely affecting the Australian economy (Richards, 2008, p.132). As a result, Australia began to broaden its policy horizons by realigning its alliance preferences towards the United States, diversifying its immigration portfolio, and taking an active role in developing the international institutions that would form the cornerstones of a new rules-based global order (Rutland, 2003, p.69). In addition to playing a key role in drafting the United Nations Charter in 1945, Australia’s Minister for External Affairs H.V. Evatt presided over the adoption of both the Genocide Convention and the Universal Declaration of Human Rights as president of the UN General Assembly in 1948 (Mandel, 2003, p.82; Pert, 2014, p.87).

It was within this complex socio-political environment that Arthur Calwell established Australia’s first Immigration Department in July 1945 (Kirk, 2008, p.54). According to Richards, Calwell’s Irish- American heritage and personal disdain for “pommies” and “cockney outcasts” influenced his decision to move away from Australia’s Anglo-centric immigration program in order to pursue a wider range of white migrants from Europe (Richards, 2008, p.176; Tavan, 2012, pp.210-211). In addition, he believed that mass migration would enable the Chifley Government to fulfil its policy objectives of strong economic growth, population building, and military preparedness (Tavan, 2012, p.204). A staunch supporter of the WAP, Calwell echoed Governor-General Lord Gowrie’s warning in 1938 that Australia must ‘populate or perish’ when he argued that “[i]f we cannot get a population of 20,000,000 or 30,000,000 people in this country within a generation or so…the day of the white race in Australia will be finished” (cited in Tavan, 2012, p.210; Neumann, 2005, p.16). As a result, Calwell initiated a highly ambitious program in September 1945 to increase Australia’s population increase by 2% per annum (half of which would be met through immigration), a move that was supported by both Prime Minister Ben Chifley and Opposition leader Robert Menzies (Zubrzycki, Jerzy, 1995, p.2; Tavan, 2012, pp.209-212).

In July 1947, Calwell signed an agreement with the International Refugee Organisation (IRO) to resettle 4000 DPs for the remainder of the year under the Displaced Persons Scheme, with a quota of 12,000 being allocated for 1948 (Richards, 2008, p.182). While IRO executive secretary Arthur J. Altmeyer praised Australia for “leading the world in social affairs and humanitarian problems” (cited in 12,000 Refugees a Year, 1947), the agreement was contingent on their ability to provide shipping and on Australia’s right to retain complete control over the refugee selection process (Richards, 2008, p.182). In keeping with the government’s policy of seeking out young, educated and healthy DPs who were both ethnically compatible with Australia’s cultural demographic and physically capable of meeting its demand for unskilled labour, the first arrivals hailed mainly from Eastern European states such as Estonia, Latvia and Lithuania (Neumann, 2005, pp.30, 32). These so-called ‘beautiful Balts’ were warmly welcomed as ‘New Australians’ and were often romanticised in the media, which emphasised their physical attractiveness, marriageability, and potential contribution to Australian society (To entertain Balt migrants, 1947; Romance in air, 1948). As a result, nearly 95% of the 170,000 IRO refugees that were resettled in Australia between 1945 and 1951 came from Eastern European countries (Richards, 2008, p.185).25

In contrast, the arrival of Jewish DPs engendered significant controversy. Even after the horrors of the holocaust had been exposed, the question of how many should be allowed into the country gave rise to significant public misgivings that they would have a negative impact on Australia’s socio- cultural demographic. When the Executive Council of Australian Jewry (ECAJ) convinced Calwell to allow the family members of 2,000 holocaust survivors to act as sponsors in 1945, the agreement sparked an outcry from lobby groups such as the Returned Services League (RSL) and the Australian Natives Association (ANA) (Rutland, 2003, p.71; Neumann, 2005, p.29). The latter referred to the new arrivals as the “refuse of Europe” (cited in Tavan, 2012, p.212), while the Bulletin accused Calwell of putting Jewish interests before those of the nation (Rutland, 2003, pp.72-73). When a shipping shortage led to a reduction in the number of projected British migrants in 1947, the tabloid newspaper Smith’s Weekly urged the government to deny landing permits to Jewish refugees until the situation had been resolved (Calwell’s Refugees, 1947). One specific report falsely claimed that three Dutch liners were bound for Australia carrying 3000 Jewish refugees (Calwell hits press, 1947), further fuelling public fears that Australia was facing an “influx of Jews” (Mr. Calwell’s Immigration Program, 1947).

25 These included 60,000 Poles, 24,000 Yugoslavs, 19,000 Latvians, 17,000 Ukranians, 12,000 Hungarians, 10,000 Lithuanians, 10,000 Czechs and 9000 Estonians (excluding Jewish refugees that were sponsored by local organisations). 73

Calwell responded to these criticisms by reducing the number of assigned berths for Jewish DPs to 25%, acutely aware that a public backlash would have been “electorally disastrous for the Labor Party” (Richards, 2008, p.182; Calwell on Refugees, p.29). After declaring that the government “had gone as far as it could reasonably be expected to go [in] granting landing permits on humanitarian grounds to the victims of religious, racial or political persecution,” Calwell announced that Jewish refugees could only resettle in Australia if they secured their own accommodation and maintenance (cited in Calwell hits press, 1947). Nevertheless, he publicly condemned the media’s propagation of “anti-Semitic poison” and argued that “[a]ny tendency of the press to foster racial animosities within Australia must be condemned as fascist” (Calwell exposes press, 1947). When Australia’s Jewish community became overwhelmed by the sheer scale of the undertaking, it sought the assistance of three American Jewish welfare organisations (the American Jewish Joint Distribution Committee (JDC), Refugee Economic Corporation (REC) and Hebrew Immigrant Aid Society (HIAS)). The joint ‘Australian Immigration Project’ significantly improved the prospects of Jewish refugees, and between 1938 and 1954, more than 25,000 European Jews were successfully resettled in Australia (Rutland, 2008, pp.80, 103).

Calwell’s ambivalent attitude towards Jewish refugees was primarily aimed at maintaining a workable balance between competing domestic interests. Nevertheless, remained vehemently opposed to the idea that the 900 non-European refugees that had remained in Australia after 1945 should gain permanent residency (Richards, 2008, p.193; Pert, 2014, p.91). In 1949, Calwell was faced with two contentious cases involving Filipino-American US Serviceman Lorenzo Gamboa and Indonesian woman Annie O’Keefe, who had both married an Australian citizen (Richards, 2008, p.193). Calwell attempted to justify Gamboa’s expulsion by citing unverified media reports that he had “colluded with U.S. officials in Tokyo to circumvent Australia’s migration laws” (cited in Calwell adamant on Gamboa, 1949). However, it was the forced deportation of Mrs. O’Keefe that sparked a major backlash from domestic advocacy groups, numerous media outlets, and neighbouring Asia-Pacific countries (How to make enemies, 1949; Tavan, 2012, p.215; Gyngell, 2017, p.52).

Calwell responded to these criticisms by asserting in Parliament that “a mongrel Australia is impossible and I shall not take the first step to establish precedents which will allow the flood gates to be opened” (cited in Richards, 2008, p.193). Rather than being met with bipartisan support, his statements were publicly condemned by politicians from both major parties (Tavan, 2012, p.216). When the High Court found in March 1949 that the immigration department did not have the power to deport O’Keefe, Calwell introduced the Wartime Refugees Removal Act 1949 (Cth) (Power, 2014). The Act was widely derided as a reflexive response to counteract the O’Keefe victory. Nevertheless, 74 it was subsequently declared to be valid on the basis that Parliament had a right to determine the conditions of entry and settlement and to use the Minister’s discretion to exclude individuals that could “potentially cause damage to the community” (Refugees Removal Act valid, 1949).

Between 1947 and 1951, over 460,000 migrants, non-British DPs and Jewish Refugees were resettled in Australia (Holbrook, 2016, pp.403-404). The Chifley government’s vastly differential treatment of Eastern European migrants and DPs, Jewish holocaust survivors, and Asian wartime arrivals demonstrates that while it was prepared to accept a more diverse range of migrants, its political response to refugees continued to be influenced by the WAP. Nevertheless, the strong public support for the plight of Annie O’Keefe also reflected the beginnings of a normative shift in how the claims of both non-British and non-European refugees were perceived by the public. As Australia’s domestic environment began to change in the wake of Calwell’s post-WWII immigration expansion program, his support for a racially homogenous nation was increasingly being challenged in both the political and public spheres even as the principles that underpinned the WAP continued to be upheld. Therefore, this first phase provides some valuable insights into why Australia’s socio-political environment was amenable to Rudd’s proposed asylum seeker policy changes in 2007 despite the fact that the introduction of the Pacific Solution had engendered widespread political and public support only six years earlier.

The Menzies Government and the Ratification of the Refugee Convention

When Liberal/Country coalition leader Robert Menzies was elected as Prime Minister in December 1949, a key issue for the government was how to deal with the new ‘great world threat’ of Communism after Mao Zedong had established the People’s Republic of China (PRC) two months earlier (Gyngell, 2017, p.31). As Australia began to take a more active interest in the Asia-Pacific region, Immigration Minister Harold Holt reversed the adverse decisions in the Gamboa and O’Keefe cases and allowed the remaining non-European wartime refugees to stay in Australia (Gyngell, 2017, p.53). These actions not only demonstrated that the WAP was beginning to be more flexibly interpreted and applied, but also evidenced a growing sensitivity to domestic and international criticism of its racially discriminatory policies (Pert, 2014, p.81). However, when delegates were tasked with negotiating the terms of the Refugee Convention at the Conference of Plenipotentiaries in Geneva in July 1951, Australia’s ongoing desire to maintain complete control over its sovereign borders was once again put on full display (Palmer, 2009).

When Immigration Department secretary Tasman Heyes viewed a draft version of the Convention in 1950, he was unequivocal that “[a]ny article which might run counter to the established immigration 75 policy of Australia [would] not be acceptable” (cited in Palmer, 2009, p.292). Two years earlier, Australia had strongly opposed the inclusion of a provision in the UDHR that enshrined the inalienable right to be granted asylum on the basis that it “would be tantamount to the abandonment of the right which every sovereign state possesses to determine [who] shall be admitted to its territories” (cited in Richards, 2008, p.200; Brennan, 2013). After nearly boycotting the event, the Australian conference representatives, Patrick Shaw and Dighton Burbridge, were advised to proceed with caution in order to avoid criticism over the WAP whilst remaining uncommitted to the idea that states had a positive obligation to grant asylum (Palmer, 2009, p.294; Neumann, 2015, pp.138-140). While the core principle of non-refoulement was supported, Australia raised reservations over the admission of non-European refugees and the potential of some of the Convention’s articles to subvert Australia’s sovereign power to control the entry of non-citizens (Palmer, 2009, pp.293, 297). Nevertheless, it adopted the more expansive version of the Convention by agreeing that it would apply to “[e]vents occurring in Europe or elsewhere before 1 January 1951” (UNHCR, Declarations and Reservations, n.d.).

On 22 January 1954, Australia became the sixth country to accede to the Refugee Convention, an act that formally brought it into force (Neumann, 2015, p.140). The event was not publicised and its provisions were not subsequently incorporated into domestic law, thus ensuring that Australia would retain complete control over the refugee intake process (Palmer, 2009, p.292; Smit, 2010, p.81; Neumann, 2015, p.140). However, an unanticipated event in the same year would bring Australia’s policy-vacuum on asylum seekers into stark focus: The Petrov Affair. On April 2, Vladimir Petrov, Third Secretary of the Soviet embassy in Canberra, defected to Australia (Neumann, 2005, p.52). While Australian authorities were prepared to offer him political asylum because he purportedly possessed intelligence that a Soviet spy ring was operating in Australia, the invitation was not extended to his wife, Edvokia Petrova. On the evening of April 19, Petrova was escorted to a Darwin- bound plane at Sydney’s Mascot Airport by two armed Soviet diplomatic couriers in order to begin the return journey to Moscow. However, they were met with angry anti-communist demonstrators (many of whom were first generation post-war migrants from Russia and Czechoslovakia) who converged on the plane and tried to remove her by force (Demonstrators try to pull, 1954). When Liberal MP Bill Wentworth relayed the chaotic scenes to Menzies and urged him to reconsider, the couriers were disarmed when the plane arrived in Darwin and Petrova was offered asylum by the acting administrator of the Northern Territory, Reginald Leydin (Neumann, 2005, p.145).

Menzies’ actions were clearly aimed at demonstrating to the Australian public that his government was sympathetic to Petrova’s plight. Nevertheless, Labor Opposition leader Evatt questioned the 76 timing of Petrov’s defection in the leadup to the 1954 Federal Election and accused Menzies of exploiting the situation for political gain (Evatt says Menzies, 1954). While the Petrov case was not a major point of contention during the election campaign, Menzies capitalised on heightened anti- communist anxieties in order to strengthen his position by announcing a Royal Commission on Espionage on April 13 and declaring that “[w]e will continue to fight the Communists [with] whatever weapons we have” (R. Menzies, 1954; Manne, 1991, pp.20-21). Conversely, Evatt’s credibility on the issue had already been significantly tarnished by previous events. In September 1951, Liberal Party deputy leader Eric Harrison had accused him of being “the most notorious defender of Communism in Australia” by attempting to amend the provisions of the Communist Party Dissolution Bill (Cth), representing the Waterside Workers’ Federation (WWF) in the High Court challenge against its enactment, and opposing the referendum that would validate it (Evatt accused as ‘defender’ of Communism, 1951; L. W. Maher, 2013). Within this politically charged domestic environment, Evatt’s argument that Menzies had fabricated the existence of a ‘spy ring’ in Australia were not only met with incredulity in both the political and public spheres, but also failed to prevent the Menzies government from securing another term in office on May 29 (Gyngell, 2017, p.58).

The Petrovs’ successful claim for asylum became a precedent for Australia’s subsequent response to refugees and political dissidents that were fleeing from the growing unrest in numerous Communist bloc countries in Eastern Europe. When the Hungarian uprising forced 200,000 people to escape to Austria and Czechoslovakia in November 1956, the Immigration Minister, Athol Townley, offered to provide sanctuary for 3000 refugees, increasing that number to 10,000 in January 1957 (Neumann (2005): 35-36). Australia also recognised 19 mainly Hungarian athletes who had defected at the conclusion of the 1956 Melbourne Olympic Games as political refugees and subsequently offered them asylum in Australia (Neumann, 2015, 147). At the same time, politicians became increasingly vocal about Australia’s humanitarian record on refugees by maintaining that it had “led the world in accepting [them] for resettlement” (Australia leader in, 1959). In 1958, Labor MP Dominic Costa asserted in parliament that Calwell’s post-war immigration program had been initiated “on humanitarian grounds [when] [o]ut of the goodness of our hearts we brought them here and gave them jobs” (Commonwealth [HoR], 27 February 1958, p.4). When 1959 was designated by the UN as the ‘Year of the Refugee’ (1959-60), Australia became an enthusiastic supporter, with Menzies contributing £50,000 towards the establishment of a World Refugee National Committee (World Refugee Year, 1960). In addition, it announced that it would resettle 200 “hardcore” refugees who had a disability and therefore could not meet the health criteria, and facilitate the arrival of another 300 through private sponsorship (Commonwealth [HoR], 17 September 1959, p.1; Neumann, 2005, p.38). 77

Despite these positive developments, Menzies remained strongly opposed to allowing non-European applicants to be admitted under its immigration program. While the much-maligned dictation test had finally been abolished under the Migration Act 1958 (Cth) (Waxman, 2000, p.58), a series of controversial cases further fuelled domestic perceptions that the WAP no longer reflected contemporaneous standards of normative appropriateness. When Willy Wong, a Chinese dissident who had arrived in Australia as a stowaway, was returned to the PRC in 1962, his deportation sparked a public outcry and led numerous politicians and sympathetic media outlets to accuse Menzies of sending him to a certain death (Statement on Chinese, 1962; Neumann, 2015, pp.147-148). In 1965, the deportation of 5-year old Fijian national Nancy Prasad prompted civil rights groups to create a petition demanding her return, while the Canberra Times encapsulated the zeitgeist of public opinion when it argued that “[t]he government has nothing against this girl or her family except the colour of the skin” (End all Racialism, 1965; Nancy case, 1965; Tavan, 2005, p.148).

By 1966, Australia’s political response to both refugees and asylum seekers had undergone another significant shift. Australia’s ratification of the Refugee Convention in 1954 constituted the first direct acknowledgment that it had a positive obligation to protect individuals fleeing from state-sponsored persecution. Moreover, the Petrov case demonstrated that while the entry process continued to be both highly restrictive and discretionary during this period, unauthorised arrivals could be similarly resettled as long as their claims were congruent with the contemporaneous socio-political climate. While the Petrovs’ defection had engendered significant controversy, Menzies was able to justify his decision to let them remain in Australia by linking the case to the government’s stated political objective of preventing a communist insurgency in Australia. By harnessing public anxieties over the Cold War, he neutralised the effectiveness of Evatt’s argument that the Petrovs’ asylum claims were not legitimate. However, when Menzies invoked the WAP in order to challenge the asylum claims of Wong and Prasad, the resulting public outrage reflected the growing perception that he was increasingly out of touch with the expectations of the Australian people. Therefore, these developments demonstrate that in order for an agent to legitimate their normative stance on a specific issue in both the political and public spheres, it must form part of a broader political objective that is also congruent with the contemporaneous socio-political climate. This in turn enables us to gain a greater understanding of how Rudd was able to de-legitimise both the moral and practical foundations of Howard’s asylum seeker policy during the 2007 Federal Election.

The Whitlam Government and The Fall of Saigon

Between 1965 and1972, Australia’s foreign policy had once again reached a critical turning point as growing concerns that the Soviet Union and the PRC would engender a ‘domino effect’ in the Asia- 78

Pacific were further exacerbated by a communist insurgency in North Vietnam. While both Menzies and his successor Harold Holt were in favour of providing military support to South Vietnam, the Labor Opposition strongly opposed Australia’s involvement (Pert, 2014, p.83). This created a policy cleavage that would have significant implications for Australia’s refugee policy over the coming decade. At the same time, the progression towards a more inclusive immigration policy continued to gain traction when Holt dismantled a crucial component of the WAP in 1966 by creating a separate visa category for non-Europeans with special skills under the revised Migration Act 1966 (Cth) (Neumann, 2005, pp.42-43). In order to demonstrate that its immigration policy would be “administered with a spirit of humanity and with good sense” (Commonwealth [HoR], 8 March 1966, p.1; Commonwealth [HoR], 7 March 1967, pp.1-4), Australia resettled 6000 refugees who had fled from Czechoslovakia following the ‘Prague Spring’ uprising in August 1968 (Commonwealth [HoR], 27 August 1968, p.1). In addition, approximately 10,000 non-European immigrants were allowed to settle in Australia between 1966 and 1970 (Neumann, 2005, p.46).

In December 1972, Labor Leader Gough Whitlam was elected as Prime Minister on the promise that he would enact policies that more accurately reflected Australia’s burgeoning multicultural identity (McMaster, 2002b, p.190). True to his word, Whitlam completed the Holt Government’s reform process by introducing the Australian Citizenship Act 1973 (Cth) which allowed all migrants to qualify for citizenship after three years irrespective of race, effectively abolishing the WAP (Tavan, 2005, p.199). The year 1973 also proved to be a watershed moment for Australia’s refugee policy when it became a party to the 1967 Additional Protocol to the Refugee Convention. While States already had the option to reject the Convention’s temporal and geographical restrictions, the Protocol was more reflective of the contemporaneous geopolitical environment by making it universally applicable (S. Davies, 2008, p.723; Neumann, 2005, p.12). However, the government also withdrew from the Intergovernmental Committee for European Migration (ICEM), which had played a key role in facilitating Australia’s post-war immigration program. The decision prompted deputy Opposition leader Phillip Lynch to state that "[w]hatever may be Australia’s selfish interests…[it] should not and must not opt out of its responsibilities” (Lynch, 1973). In 1974, the government also abolished the Immigration Department and redistributed its main functions to the Labour Department, a move that clearly indicated that immigration matters were not considered to be a prominent policy issue during this period (Jupp, 2007, p.37; Neumann, 2015, p.225).

During the early 1970s, the racial composition of non-European refugees became increasingly diverse. Nevertheless, acceptance rates remained relatively low. Between 1972 and 1975, approximately 198 Asian refugees from Uganda, 2000 political dissidents from Chile, and 2,500 79

East Timorese evacuees were resettled in Australia (Neumann, 2005, pp.46-48; Commonwealth [Senate], 10 April 1974, p.940; York, 2003; RCOA, 2013). Notwithstanding the government’s support of these controlled refugee intake schemes, Whitlam was far more reluctant to assist South Vietnamese refugees towards the closing stages of the Vietnam War. This position was largely attributable to his conviction that Australia’s “growing standing as a distinctive, tolerant, cooperative and well-regarded neighbour” necessitated a non-interventionist approach to conflict resolution in the Asia-Pacific region (Forkert, 2012, p.430; Tavan, 2005, p.190; Viviani, 1984, p.57). After a formal ceasefire was announced under the Paris Peace Accords on 27 January 1973, Whitlam established parallel diplomatic relations with both Hanoi and Saigon on the basis that Australia needed to support the prevailing leadership irrespective of their ideological orientation (Gyngell, 2017, p.113). However, when hostilities once again resumed and North Vietnamese troops began to advance towards Saigon in early 1975, Whitlam was confronted with the moral dilemma of how much assistance Australia should provide in order protect thousands of vulnerable people from imminent persecution (Forkert, 2012, p.427).

In March 1975, Opposition leader Billy Snedden was replaced by Malcolm Fraser following a leadership spill. A hawkish foreign policy realist, Fraser’s primary concern was to mitigate the pervading threat of Soviet expansionism in the Asia-Pacific region by supporting Australia’s military involvement in the Vietnam War (Rodd, 2007, p.35). In addition to publicly condemning Whitlam’s ambivalent stance on the issue, he increasingly maintained that Australia had a moral obligation to support those who were fleeing the communist advance (Lynch, 1975; Peacock, 1975; Gyngell, 2017, pp.141-142). These criticisms were further amplified when the Australian Embassy in Saigon had managed to approve only 342 of 3,667 refugee applications and had airlifted 78 Vietnamese nationals to Australia by the time that it was evacuated on April 25 (Senate Standing Committee on Foreign Affairs and Defence, 1975, p.6). The fall of Saigon prompted a charged debate in Parliament over the scope of Australia’s moral obligations to the Indochinese refugees. Liberal MP Michael MacKellar vehemently condemned what he called Whitlam’s indifference to “humanitarian need [which] has cost Australia a well respected reputation as a nation of unprejudiced compassion” (Commonwealth [HoR], 21 May 1975, pp.2634). In addition, he maintained that while “[t]he Opposition has consistently taken a humanitarian line…hundreds of people of Vietnamese origin [have] been cruelly, callously, capriciously cast aside by this Government” (pp.2634-2635).

At the same time, numerous media outlets and domestic advocacy groups began to lobby the Whitlam government to do their part in evacuating thousands of Indochinese orphans that remained trapped in South Vietnam in the weeks preceding the fall of Saigon. The Canberra Times highlighted their plight 80 by showing graphic images of children in acute distress, while the Australian Adoptive Families Association (AAFA) and the Australian Society for Intercountry Aid Children (ASIAC) declared that many orphans would die if the adoption process was not sped up (Vogle, 1975; O’Loughlin, 1975; Speed up adoptions, 1975). The result of these myriad pressures was that when U.S President Gerald Ford announced that he intended to airlift 2,500 children to North America on April 3, Whitlam followed suit by giving approval for RAAF aircraft to be used to transport 208 orphans to Australia the following day (Viviani, 1984, p.58; Forkert, 2012, p.433). While the Tribune accused both Whitlam and Fraser of using the orphan airlift “for their own base political motives” (U.S-Saigon fraud, 1975), a Gallup poll found that over 60% of respondents agreed that Vietnamese orphans should be brought to Australia for adoption (Forkert, 2012, p.437).

Despite reducing some of the domestic criticism over the government’s inaction in addressing the looming crisis in South Vietnam, the airlifts did little to alleviate the public perception that Whitlam had failed in his duty to assist the refugees (Forkert, 2012, p.438; Viviani, 1984, pp.59-60; Colebatch, 2014, p.31). When the government finally unveiled its official policy response on April 22, the restrictive criteria that limited entry to spouses and children of Vietnamese nationals already present in Australia ensured that a large proportion of eligible refugees would be excluded (Colebatch, 2014, p.35). By May 1975, less than 1,000 of the 130,000 South Vietnamese that had fled after the fall of Saigon had been resettled in Australia, largely negating Whitlam’s assertion that Australia was “scrupulously” complying with its international obligations (cited in Pert, 2014, pp.110-111). However, I argue that while Whitlam’s own actions had diminished his credibility on the issue, it was equally attributable to the Opposition’s sustained attacks on his non-interventionist stance in the Vietnam War and attendant claim that Australia had a moral obligation to protect the Indochinese refugees from harm. This in turn provides a valuable insight into how political elites strategically use humanitarian arguments in order to de-legitimise the normative stances of their opponents.

The decade between 1965 and 1975 can be viewed as a consolidation period in that the notion that Australia’s protection obligations extended to all individuals fleeing from persecution irrespective of race became a guiding principle in its subsequent response to refugees. However, the next section will demonstrate that as the ongoing exodus of Indochinese refugees into neighbouring countries rapidly turned into a humanitarian crisis, the incoming Fraser government was faced with formulating a comprehensive policy response to the sudden increase in asylum seekers that were arriving directly on its shores by boat (Viviani, 1984, p.63).

The Fraser Government and the Introduction of Australia’s Humanitarian Program

On 11 November 1975, an increasingly beleaguered Whitlam was dismissed by the Governor-General Sir John Kerr. Malcolm Fraser was appointed caretaker Prime Minister and subsequently won an outright majority of seats in the House of Representatives in the December election (Pert, 2014, p.114). In keeping with his strong support for a more multicultural Australia, Fraser created the Department of Immigration and Ethnic Affairs (DIEA) and declared that his immigration policy would be “guided by principles of humanity, equity and compassion” (Fraser, 1976, p.46). Between 1975 and 1979, the number of Asian immigrants rose from 14% to 36, while $50 million was allocated over three years for post-arrival programs and services for migrants in accordance with the Galbally report (Richards, 2008, p.261; Fraser, 1978). In addition, the government resettled 10,700 Lebanese refugees and granted permanent residency to Timorese refugees and Indochinese students that were already living in Australia (Stevens, 2012, p.527; 1,000 to Australia, 1976; Jupp, 2007, p.40). In order to address what it called Labor’s “shameful and unprincipled position on the question of Vietnamese refugees” (Fraser, 1976, p.38), the government further announced that it would “establish a refugee mechanism to cater for emergency situations instead of making ad hoc responses” (Fraser, 1975, p.47).

On 28 April 1976, five Vietnamese asylum seekers arrived in Darwin by boat (Viviani, 1984, p.68), At the time, their unauthorised entry attracted little media attention. However, this soon began to change as reports began to emerge that Thailand and Malaysia (the main countries of first asylum for Indochinese refugees after 1975) were becoming overwhelmed by sudden influx of refugees into their respective territories and were towing boat arrivals back out to sea (Viviani, 1984, pp.69, 74; Stats, 2015, p.70). When two more boats carrying a total of 106 people arrived in Darwin towards the end of the year, serious concerns began to be raised about Australia’s capacity to absorb them on top of its existing resettlement initiatives. Moreover, the fact that many passengers had paid significant sums to get to Australia prompted fervent domestic debates over whether they were in fact ‘genuine’ refugees (J. Phillips & Spinks, 2013, p.9; Stevens, 2012, p.532). As a result, Fraser came under sustained political pressure to stem the flow of boat arrivals, with both Labor and officials within the Immigration Department urging him to take a more hard-line stance on the issue (Stats, 2015; p.77; Steketee, 2009a).

In May 1977, Immigration Minister Michael MacKellar responded to these myriad domestic and international pressures by outlining the Fraser Government’s official policy position on refugees. He stated that while “the decision to accept refugees must always remain with the Government of 82

Australia” (MacKellar, 1977a), it had a “responsibility to fulfil the legal obligations required by the [Refugee] Convention [by] develop[ing] special humanitarian programs for the resettlement of the displaced and/or the persecuted” (Commonwealth [HoR], 24 May 1977, p.1713). The announcement constituted a major departure from the ad hoc measures that had been implemented by previous governments in order to deal with periodic increases in refugee numbers. Nevertheless, resettlement quotas continued to remain relatively low. While the government had issued a total of 9326 refugee visas during 1977 (Phillips, 2017, p.2), only 4,500 Indochinese had been resettled since the end of the Vietnam War (Refugee intake ‘inadequate’, 1977). This prompted Labor MP Urquhart Innes to accuse Fraser of “paying lip service to the principles of the convention” while refusing to accept responsibility for the human cost of its interventionist actions in Vietnam (Commonwealth [HoR], 24 May 1977, p.1716; Smit, 2012, p.84).

By the end of 1977, the number of boat arrivals to Australia had risen to 868 as refugee numbers in Thailand alone swelled to 95,000 (Viviani, 1984, p.74; Refugees: Tougher Thai Policy, 1977). As a result, the asylum seeker issue was placed firmly in the public spotlight in the weeks leading up to the 1977 Federal Election (Stevens, 2012, pp.528-529). When reports emerged that the Vietnamese fishing trawler Song Be 12 had been forcibly taken over by 180 asylum seekers and commandeered to Australia, a number of media outlets perpetuated the view that the passengers were criminals and economic opportunists that had gained an unfair advantage over ‘genuine’ offshore refugees (Boat people ‘paid fares, 1977; ‘Stop the Refos,’ 1977; Viviani, 1984, pp.75-77; Stats, 2015, p.77), Nevertheless, Australia’s Minister for Foreign Affairs, Andrew Peacock, rejected Vietnam’s claims that the passengers were ‘pirates’ (Cranston, 1977), while the Bulletin declared that “[r]efugees are refugees wherever they come from [and] [o]ne really does not, if one retains a shred of decency, try to deny them asylum by making foul accusations” (Fairbairn, 1977). In response to these growing concerns, MacKellar sent an immigration team to Malaysia and Singapore in order to expedite the refugee determination process and to increase coastal surveillance operations “to safeguard Australia against unauthorised entry” (MacKellar & Hunt, 1977; Stevens, 2012, p.530). However, when Labor’s acting spokesperson for Immigration, Senator Tony Mulvihill, argued that some seaworthy boats should be turned back, MacKellar retorted that “[if] these people were set adrift in their small boats, Australia would be a pariah in the international community” (MacKellar, 1977b).

In early 1978, the Fraser Government continued to issue public statements that reaffirmed that Australia had a normative obligation under international law to assist the Indochinese refugees. On March 16, MacKellar announced that the government would streamline the refugee application process by establishing the Determination of Refugee Status (DORS) Committee in order to “fulfi[l] 83 its obligations as a signatory to [Refugee] Convention and the 1967 Protocol” (MacKellar, 1978a; MacKellar, 1978b). However, when reports surfaced in November that the Hai Hong, a Vietnamese vessel that was carrying more than 2,500 passengers, was heading to Australia, the government’s rhetoric on boat arrivals began more exclusionary. In response to claims that the passengers were wealthy economic migrants (Stevens, 2012, p.530), MacKellar stated that “we shall not accept cases involving subterfuge [where] people falsely represent themselves as refugees in order to gain admission to Australia” (cited in Stevens, 2012, pp.529-530). Moreover, while he maintained that Australia was one of the most generous refugee resettlement countries in the world, he also made it clear that “[w]e cannot also be expected to handle others whose acceptance would in itself lower the priority accorded those already in refugee camps” (MacKellar, 1978c).

For his part, Fraser had also become increasingly sceptical of the legitimacy of the claims of the more recent boat arrivals. In June 1979, he stated that “[i]f illegal migrants are going to be enabled to stay [here]…that in my view acts against the interests of those who seek to migrate in the normal way; who put their name down and within the system” (Fraser, 1979a). Nevertheless, his initial reluctance to admit them was qualified by his overriding conviction that “more countries should make places available to these wretched victims of communism [because] [a]ll nations need compassion and understanding in dealing with this problem” (Fraser, 1979b). By consistently maintaining that Indochinese refugees deserved to be treated with compassion and linking his humanitarian rhetoric to his broader anti-communist stance, Fraser was able to justify the resettlement of the boat arrivals to the Australian people. When MacKellar introduced the Community Refugee Settlement Scheme (CRSS) in October 1979, (MacKellar, 1979), the initiative was accompanied by a media campaign that was aimed at demonstrating to the public that the Vietnamese families could be successfully integrated into Australian society (McKay, Thomas & Blood, 2011, p. 609). While a public opinion poll in February 1979 found that 61% of respondents wanted the government to limit the number of refugees that were entering Australia, (cited in K. Betts, 2001, p.40), the success of the CRSS scheme reflected the government’s ongoing commitment to honouring its international obligations under the Refugee Convention.

Between 1977 and 1982, over 54,000 Indo-Chinese refugees were resettled in Australia, while the 2,059 asylum seekers that had arrived by boat during this period were also allowed to remain (Stevens, 2012, p. 526; Karlsen, J. Phillips & Koleth, 2011, p.3). The above analysis largely affirms that the introduction of the Humanitarian Program in 1977 was primarily aimed at mitigating domestic concerns over Indochinese boat arrivals by regaining control over the resettlement intake (Marr & Wilkinson, 2003, p.45; McMaster, 2001, p.50; Stats, 2015), Nevertheless, Fraser’s handling of the 84

Vietnamese refugee crisis also reinforces the central CNR contention that state leaders play a far more prominent role in driving normative change at the domestic level than first-generation constructivists had envisioned. Rather than being compelled to embrace positive human rights change by external forces, Fraser advanced his position that Australia had a both a moral and a normative obligation to protect the refugees from persecution despite facing active resistance from the Whitlam Opposition and misgivings from within his own party (Steketee, 2009a). In addition to repeatedly chastising Whitlam for failing to treat the ‘wretched victims of communism’ with compassion, the government took definitive steps in order to garner public support for its resettlement scheme. Chapter 4 will similarly demonstrate that Rudd’s publicly declared support for the ‘vulnerable stranger’ and subsequent criticism of the Pacific Solution constituted the primary catalyst for engendering a normative shift on asylum seekers in 2007.

The Fraser government’s implementation of a domestic policy framework for determining refugee claims significantly enhanced Australia’s compliance with the Refugee Convention. However, the next section will demonstrate that it also created a normative cleavage by differentiating between ‘genuine’ refugees whose status had already been verified, and asylum seekers that attempted to reach Australia by boat. This bifurcation of Australia’s refugee policy into two separate normative structures not only set a fateful precedent for how the asylum seeker issue would be debated over the coming decades, but also provides the analytical foundation for examining why Labor’s ‘hardline and humane’ approach was unable to be sustained.

II. The (D)evolution of Australia’s Asylum Seeker Policy – 1980 to 2006

In May 1980, Immigration Minister Ian MacPhee introduced the Immigration (Unauthorized Arrivals) Bill 1980 (Cth) into Parliament. MacPhee maintained that the bill was not designed to punish boat arrivals, but rather to prevent from “undertak[ing] this hazardous journey” in the first place (Commonwealth [HoR], 1980, pp.2517-2518). However, when vessel VT 838 arrived in Darwin on 5 October 1981, he declared that the passengers were part of a “well planned syndicate operation to move people illegally into Australia” and therefore did not qualify as genuine refugees under international law (McPhee, 1981; Commonwealth [HoR], 20 October 1981, pp.2192-2194). Significantly, Labor Shadow Immigration Minister Mick Young agreed that while the ongoing refugee crisis was “in many ways very much a tragedy,” asylum seekers who wished to come to Australia “must join the queue and we must make the decision on how many people we can properly settle” (McPhee, 1981; Commonwealth [HoR], 20 October 1981, p.2195). These statements in turn marked the beginning of a renewed bipartisan consensus that Australia had an overriding obligation 85 to protect its sovereign borders from irregular migration. While a complementary protection provision was subsequently introduced under section 6A of the Migration Act 1958 (Cth) in order to allow boat arrivals to apply for an entry permit if “there are strong compassionate or humanitarian grounds,” the ambiguous wording of the provision soon raised concerns that it would leave the Immigration Department open to broad judicial scrutiny (Karlsen, 2009; McAdam, 2011).

At the same time, a number of programs were initiated in order to expand the categories of potential offshore refugees that could be resettled in Australia and to assist refugees that were still languishing in camps in Southeast Asia. In 1981, the Special Humanitarian Program (SHP) was introduced in order to assist people who did not fit within the confines of the Refugee Convention definition but were subject to widespread discrimination or human rights abuses (Karlsen, Phillips & Koleth, 2011, p.3; Creek, 2014, p.487; Gibney, 2004, p.180). A year later, the Australian Government negotiated an agreement with the Vietnamese Government for an Orderly Departure Program (ODP), which facilitated the resettlement of a further 80,000 Indochinese Refugees (Stats, 2015, p.71; Richards, 2008, pp.276-277). These concurrent policy developments of expanding Australia’s refugee resettlement program while curtailing the rights of asylum seekers effectively stopped the boats and by the mid-1980s, the issue had largely disappeared from the public arena (Gyngell, 2017, p.280). However, the next section will demonstrate that when the second ‘wave’ of asylum seekers began to arrive on Australia’s shores in 1989, the exclusionary arguments that had emerged a decade earlier were once again utilised to full effect.

The Hawke Government and the Categorisation of the “Illegal Entrant”

When Labor leader Bob Hawke replaced Malcolm Fraser as Prime Minister in March 1983, he promised that while Australia’s foreign policy would be ‘hardheaded,’ it would also “at all times [be] consistent with Australia’s international obligations” (Hawke, 1983). Under his leadership, Australia renewed efforts to rebuild its flagging relationships with ASEAN countries and supported the emerging norm of nuclear disarmament (Pert, 2014, p.127; Gyngell, 2017). In addition, it ratified and partially implemented a number of international human rights treaties26 and introduced a domestic mechanism for investigating human rights breaches under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (Pert, 2014, pp.133-138).

26 In addition to removing most of Australia’s reservations to the ICCPR and ratifying the CRC on 17 December 1990, it incorporated key provisions of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) into the Sex Discrimination Act 1984 (Cth), and the CAT into the Crimes (Torture) Act 1988 (Cth). 86

However, as the global refugee population rose from nearly 8.5 million in 1980 to nearly 17.5 million in 1990 (UNHCR, UNHCR Statistics, n.d.),27 the government became increasingly reluctant to acknowledge that its normative obligations extended to asylum seekers. When 12,000 West Papuan asylum seekers crossed into Papua New Guinea between 1984 and 1986, Foreign Minister Bill Hayden rejected the notion that Australia had a moral obligation to resettle them (Maclellan, 2006; Hodgman, 1984; Hayden stands firm, 1985). At the 1985 United Nations Executive Committee meeting, Australia similarly argued that it was "undesirable to define those groups of persons as 'refugees' and to grant them the full range of protection available to victims of individual persecution" (Goodwin-Gill, 1988). In 1988, the Hawke Government commissioned a review of Australia’s immigration policy in order to streamline the entry process. The resulting FitzGerald Report not only questioned the rationale that underpinned Australia’s multicultural immigration program, but also maintained that its current composition ignored public misgivings over the continued expansion of separate ethnic communities by privileging family reunion initiatives over skilled migrant intakes (Birrell & K. Betts, 1988, pp.262-263). The cumulative impact of these developments was that by the end of the 1980s, the socio-political environment within which Fraser had brought his refugee policy to fruition had undergone significant changes. These changes in turn facilitated the introduction of a more restrictive asylum seeker policy.

In April 1989, the Migration Legislation Amendment Bill 1989 (Cth) was introduced into parliament. The bill recommended that section 36A, which stipulated that boat arrivals were deemed not to have legally entered Australia, should be retained in order to “hal[t] refugee claimants at Australia’s frontier” (Commonwealth [HoR], 1 June 1989, p.3452). In addition, it called for section 6A to be replaced in order to restrict the humanitarian grounds upon which a valid entry permit could be obtained by boat arrivals (McAdam, 2011, p.64). These changes were largely motivated by the fact that the Immigration Department was facing a backlog of 8000 asylum seeker applications, a situation was partly attributable to lawmakers’ increasingly expansive interpretation of Australia’s international obligations to refugees and asylum seekers (McAdam, 2011, p.63). In Damouni,28 Justice French stated that “'[s]trong humanitarian grounds' did not have to amount to Convention ‘persecution’” (at 102). Similarly, the High Court held in the landmark case of Chan Yee Kin v Minister for Immigration and Ethnic Affairs29 that in order to satisfy the Article 1A(2) definition of a refugee, it was sufficient that there was a “real chance” (even if this amounted to 10%) that the applicant would be persecuted upon being returned to their home country (at 389, 429). The bill garnered severe criticism from the Federation of Ethnic Communities' Councils of Australia

27 In 1980 there were a total of 8,454,937 refugees. By 1990, that number had risen to 17,395,979. 28 Damouni (1989) 87 ALR 97. 29 Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. 87

(FECCA), the Refugee Council of Australia (RCA) and the Australia Council of Churches (ACC) (Commonwealth [Senate], 30 May 1989, p.3001; Birrell & K. Betts, 1988, p.263). Nevertheless, the Migration Legislation Amendment Act 1989 (Cth) came into force in December 1989, in the process initiating a pattern of reactive policy-making against the perceived judicial activism of the High Court (Crock, 2003, pp.60-61).

These legislative changes were in turn accompanied by a marked increase in exclusionary rhetoric on asylum seekers. In May 1989, Immigration Minister Robert Ray argued in parliament that “compassion should be reserved for those who apply legally to come to this country [and] wait for months and months in a queue” (Commonwealth [Senate], 3 May 1989, p.1680). The impetus for this discursive shift was at least partially driven by the fact that the number of Vietnamese that were seeking asylum in Southeast Asia and Hong Kong had increased by 84% between 1988 and 1989, prompting domestic concerns that Australia was about to face a second ‘wave’ of Indochinese boat arrivals (S. Davies, 2014, p.285). On June 13, Foreign Minister Gareth Evans announced that Australia would take 11,000 Indochinese refugees from offshore camps in Hong Kong and Southeast Asia over three years under the Comprehensive Plan of Action (CPA) (Scott, 1989). The CPA constituted a collaborative agreement between ASEAN states, Hong Kong and the UNHCR to address the continued exodus of people from Vietnam and Laos to other Asia-Pacific countries. Evans, who led the Australian delegation at the International Conference on Indochinese Refugees in Geneva, acknowledged that the ongoing Indochinese refugee crisis was “tragic in its human consequences” (Evans, 1989, p.2). Nevertheless, he also maintained that “it is patently clear [that][t]he belief in the ultimate inevitability of resettlement has become the cause of departure of many persons who are not refugees [and] whose motivation for leaving is clearly economic” (Evans, 1989, p.2).

The CPA in turn set the normative parameters for how Asia-Pacific countries interpreted the scope of their protection obligations to the Indochinese asylum seekers. While the agreement placed particular emphasis on organising the orderly departure and resettlement of large numbers of UNHCR-verified refugees, its primary purpose was to discourage asylum seekers from leaving their countries of origin by stipulating that they would not automatically be granted refugee status (S. Davies, 2014, pp. 286-287). As Loughnan (2019, p.163) asserts, the new screening processes that were developed in order to separate ‘genuine’ refugees from ‘bogus’ claimants further fuelled the perception that many of the new arrivals were ‘illegal’ economic migrants. These regional developments in turn provide a further explanation for why the Hawke government’s reaction to the new boat arrivals was more hostile than that of his Liberal predecessor. When a vessel carrying 88

Cambodian asylum seekers arrived near Broome in November 1989, the legitimacy of their claims were consequently immediately called into question (Concern about encouraging, 1989; Manne, 2013, p.18).

The growing normative divide between Australia’s refugee and asylum seeker policies became even more apparent when several hundred student protestors were gunned down in China’s Tiananmen Square on June 4. Hawke’s personal horror over the massacre prompted him to declare that Australia would do “all that we possibly can to give a sense of safety and security to those who are within our borders” (cited in Branson, 1989; Hawke, 1989; Zakharov, 1989). These sentiments were in turn warmly received by the public, with two public opinion polls finding that Australians were generally in favour of offering protection to the Chinese students (Goot, 1989). Nevertheless, his humanitarian response also raised questions over his differential treatment of the Cambodian asylum seekers. When Hawke pre-empted Cabinet debate on the issue by publicly announcing that all of the 20,000 Chinese nationals that were present in Australia at the time of the massacre would be allowed to remain, he was accused of being a hypocrite (Hewson, 1990; Millett, Grigson & Hewett, 1990).

In response to these criticisms, Hawke maintained that while “we have a compassionate humanitarian policy…we're not here with an open door policy saying anyone who wants to come to Australia can come” (Hawke, 1990). Shadow Immigration Minister Philip Ruddock similarly declared that “[p]eople without genuine claims of a well-founded fear of persecution should not be able to manipulate our compassion” (Ruddock, 1990). Hawke’s argument that the boat arrivals were engaging in “economic refugeoism” and that he was “not going to allow people just to jump that queue by [getting] into a boat” in turn further enshrined the binary between ‘genuine’ refugees and ‘undeserving’ asylum seekers as a key guiding principle of Australia’s response to boat arrivals (Hawke, 1990). In the Joint Standing Committee on Migration Regulations (JSCM) report Illegal Entrants in Australia: Balancing Control and Compassion, offshore refugees and ‘innocent illegals’ who were unaware of their status were distinguished from ‘decep[tive]’ individuals who had reached Australia through irregular channels (JSCM, 1990, pp.26-28).

In 1991, Australia was facing the worst economic downturn since the depression. This precarious socio-political environment further heightened public concerns that Australia was in the grips of a new ‘boat people’ crisis (J. Phillips & Spinks, 2013, p.23; Richards, 2008, p.305).30 In order to stem the flow of boat arrivals, Hawke and his new Immigration Minister, Gerry Hand, began to take decisive steps to further restrict their ability to enter and remain in Australia. In April 1991, the

30 Between 1989 and 1991, a total of 382 asylum seekers arrived on 8 vessels. 89

Migration Amendment Bill 1991 (Cth) was introduced into Parliament in order to clarify the legal classification of unauthorised arrivals and to streamline the review mechanisms for failed refugee claims (Parliamentary Research Service, 1991). The bill prompted the Opposition to declare that the Hawke government was rewarding the boat arrivals “by seeking to accord specific rights to unprocessed persons” and had “failed to control and maintain the integrity of Australia's borders [by] deal[ing] with refugee claims in a proper and sensible way” (Commonwealth [HoR], 3 June 1991, p.4580). However, when the government announced in October that it would move all Indochinese asylum seekers to a secure facility at Port Hedland, the move was strongly supported by the Coalition (Ruddock, 1991).

The introduction of Australia’s first onshore detention centre rearticulated the domestic meaning-in- use of international asylum seeker norms. In addition to highlighting their purported illegality, the detention of boat arrivals perpetuated the view that they were criminals that had deliberately violated the procedural norms that governed the entry of non-citizens. However, while policy makers continued to reject the notion that its protection obligations under the Refugee Convention extended to asylum seekers, they remained adamant that the measures were both “fair and just” (Commonwealth [HoR], 29 May 1991, p.4181). When Hand faced significant criticism from refugee advocacy groups over the government’s harsh treatment of the boat arrivals (Catholic Bishops demand, 1991), he reiterated MacPhee’s assertion in 1980 that deterrence-based measures were necessary in order to “prevent people making the hazardous, treacherous, dangerous voyage” to Australia (Commonwealth [HoR], 29 May 1991, p.4181). This in turn demonstrates that while the asylum seeker debate was increasingly dominated by exclusionary rhetoric during this period, political elites also strategically used humanitarian arguments in order to justify their hardline response to boat arrivals and to neutralise the effectiveness of alternative viewpoints. As Chapters 4 and 5 will demonstrate, the argument that hardline policies promoted the welfare of IMAs by protecting them from harm became an indispensable tool for the Coalition to provide a justificatory basis for its ‘Stop the Boats’ policy.

The Keating Government and the Introduction of Mandatory Detention

In the early 1990s, the geopolitical landscape had once again changed dramatically. On the one hand, the demise of the Soviet Union in late 1989 had finally resolved the Cold War impasse that had influenced the foreign policies of successive Australian governments since 1949 (Gyngell, 2017, pp.197-198; Evans, 1991). However, the intrastate violence that subsequently engulfed some of the USSR’s former satellite states also significantly increased the global refugee population as large 90 numbers of Internally Displaced Persons (IDPs) remained trapped in the conflict zones.31 As state borders became more permeable in a globalised international environment, larger numbers of people also began to leave their countries of origin for non-Convention reasons such as entrenched poverty, political instability, and climate change-related displacement, leading to a corresponding increase in “mixed-migration” flows (Hartmann, 2010; Biok, 2007, p.69; James, 2014, p.215). Faced with a lack of adequate protective mechanisms in many Asia-Pacific countries, many of these irregular migrants began to employ the services of people smugglers from transit countries in order to reach Australia’s shores (S. Taylor, 2007, p.110; Aisbett, 1992).

After defeating Hawke in an acrimonious leadership challenge in December 1991, Paul Keating continued his predecessor’s policy of curtailing the rights of asylum seekers under international law by incorporating increasingly restrictive measures into its domestic policy framework (Gyngell, 2017, p.198). In early 1992, the new government found itself under significant pressure to resolve lengthy delays in the processing of asylum seeker claims as it faced a massive backlog of 23,000 applications, while over 300 boat arrivals had languished in immigration detention for nearly three years (Ruddock, 1992a). Hand placed the blame for the delays firmly on what he perceived to be the undue influence of activist lawyers (who he called the “worst kind of human beings”) and the lawmakers that were enabling asylum seekers to engage in lengthy administrative appeals (cited in Richards, 2008, p.306). As a result, he declared that he would make significant changes to Australia’s asylum seeker policy by limiting the judicial avenues that had been used by the Cambodian boat arrivals in order to appeal adverse refugee assessments. In April 1992, the issue came firmly to a head when 37 detainees that had their refugee applications rejected decided to challenge the validity of the decision on the basis that a legal error had been made during the determination process (Hand, 1992).

After the Federal Court issued an interim order to keep them in Australia until the matter had been resolved, the Keating Government decided to pre-empt a potentially adverse High Court judgment by passing the Migration Amendment Act 1992 (Cth) on May 5. The Act codified the detention of boat arrivals under the new Division 4B and authorised the judicially non-reviewable detention of ‘designated persons’ for a maximum of 273 days (s54R). During final deliberations on the bill, the burden of responsibility for the changes was firmly placed on the “so-called humanitarian groups and sleazy lawyers who have made immigration matters their specialty,” with Labor MP Graeme Campbell referring to the latter as “the scum of the earth” (Commonwealth [HoR], 5 May 1992, p.2378). The prevalent view that judicial leniency would leave Australia open to an influx of boat arrivals was also reflected in the statement by Labor Senator Jim McKiernan that “if they are given

31 In the early 1990s, the global number of IDPs was estimated to be around 26 million: Orchard, 2014, p.204. 91 refugee status [through] the courts or by some other means—the floodgates will open and many more boats will appear on the northern and western shores of this country carrying people who believe they have a claim” (Commonwealth [Senate], 5 May 1992, p.2249).

These new measures marked another significant turning point in Australia’s asylum seeker policy by effectively legitimising the mandatory detention of unauthorised arrivals (Garnier & Cox, 2012, pp.1- 2), Moreover, they further diminished Australia’s compliance with international refugee and asylum seeker norms by contravening their fundamental right not to be subjected to arbitrary detention and to have their claims promptly heard in a court of law (see introduction). Nevertheless, the government maintained that the overriding necessity to regain control over the refugee determination process superseded its obligations under international law. In August, the JSCM released its report Australia’s Refugee and Humanitarian System: Achieving a Balance between Refuge and Control, where it deliberated the merits of incorporating the Refugee Convention into Australian domestic law. While it acknowledged that lengthy detention periods could have a detrimental impact on the mental and physical wellbeing of IMAs (JSCM, 1992, s3.40) it also found that “the Convention should not be justiciable directly [because] [s]tatutory incorporation [would] not enhance or increase the scope of judicial review” (ss4.23, 4.25).

In December 1992, the constitutional validity of section 54R was challenged in the High Court in the case of Chu Kheng Lim v Minister for Immigration Local Government and Ethnic Affairs.32 The section was held to be invalid because it permitted the Executive to exclude the High Court as an avenue of judicial review. Nevertheless, the detention of boat arrivals under Division 4B was considered to be a valid application of Aliens power because it constituted a procedural rather than punitive regime (JSCM, 1994, pp.75-77). While Hand continued to decry the perceived judicial activism of the courts, he also refrained from directly attacking the characters of the asylum seekers. Instead, he portrayed them as the hapless victims of overzealous advocates who prolonged their suffering by encouraging lengthy litigation proceedings (An Interview with, 1993, p.7). Conversely, Ruddock accused Hand of using asylum seeker advocates as “scapegoats” in order to downplay his own inept handing of the situation (Ruddock, 1992c), even as he agreed that the right to expel unauthorised arrivals should remain within the purview of the Australian Government (Ruddock, 1992b). As Chapters 4 and 5 will demonstrate, the rhetorical strategy of reframing IMAs as the victims of external forces enabled both Rudd and Abbott to advance their positions on asylum seekers at specific points in time.

32 Chu Kheng Lim v Minister for Immigration Local Government and Ethnic Affairs [1992] HCA 64. 92

During the early 1990s, the strategic use of humanitarian language for exclusionary purposes also became increasingly prevalent in the public sphere as numerous media outlets began to appropriate it for their own purposes. The Sunday Age argued that even if they were proven to be genuine refugees, Australia’s acceptance of the boat arrivals might “encourage others to take to the high seas, often in leaky craft, in a risky game of refugee roulette – the ultimate prize being sanctuary in Australia” (Refugees raise hard questions, 1992). Similarly, the Canberra Times maintained that “[i]t would be a great pity if we allowed our natural compassion and sense of justice to exacerbate the problem of the illegal entry of boat people” (Fisher, 1994). While these reports mirrored the government’s strategy of critiquing the mode of arrival, identity, and motivations of the boat arrivals whilst avoiding any direct references to their character (Childs, 1992), public attitudes on asylum seekers appeared to be more hostile. In October 1993, an Irving Saulwick poll found that 44% of respondents wanted the boat arrivals to be “sent straight back where they come from, despite what they say may happen to them,” while 46% said that they should be detained while their claims are being assessed (Carney, 1993). By providing a justificatory basis for the new hardline measures on both practical and humanitarian grounds, the Keating government had legitimated the exclusion of boat arrivals in both the political and public spheres, a tactic that would subsequently be used to great effect by the Coalition between 2010 and 2013.

Between November 1989 and January 1994, a total of 735 asylum seekers on 18 boats arrived in Australia, while a further 953 arrived in 1994 alone (Phillips & Spinks, 2013, p.23). In response to these continued increases in boat arrivals, the government introduced both the Migration Legislation Amendment Act 1994 (Cth) and the Migration Regulations 1994 (Cth). In addition to invalidating visa applications by non-citizens that were covered by the CPA, the new legislative measures authorised their expulsion to a ‘safe third country’ if a non-citizen had a “prescribed connection” with it or Australia had designated it as a viable destination33 (S. Taylor, 1996, p.197; Manne, 2013, p.19). Significantly, the government’s hardline stance on boat arrivals (and the reasoning that accompanied it) had not only become an increasingly normalised facet of the asylum seeker debate in Australia, but had also made it more impervious to domestic criticism. The government’s introduction of a new Bridging Visa category34 was partially attributable to sustained pressure from the Human Rights and Equal Opportunity Commission (HREOC) and other refugee advocacy groups to release some of the Port Hedland and Villawood detainees into the community (JSCM, 1994; Garnier & Lloyd, 2012, p.6). However, the fact that the visa was only available to non-citizens that had validly entered

33 Migration Act 1958 (Cth), ss91D. 34 Migration Legislation Amendment Act 1994 (Cth) 93

Australia demonstrated that their lobbying ultimately had little effect on compelling the government to soften its stance on asylum seekers (JSCM, 1994, pp.86-87).

At the same time, the perceived judicial activism of the High Court continued to be criticised in both the political and public spheres. In April 1995, the High Court held in Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh35 that the ratification of an international treaty raised the ‘legitimate expectation’ that its provisions would be adhered to even in the absence of domestic incorporation (at 365). The decision prompted a significant backlash from media outlets such as the Australian and the Sydney Morning Herald, while Shadow Immigration Minister Alexander Downer argued that it impaired the government’s ability to “ensure that the direct impact of conventions and treaties upon Australian law is controlled by the Parliament rather than by the act of signature” (Downer, 1995; Why treaty-making must be, 1995; Lawyers believe they know, 1995). Nevertheless, the Keating government continued to make concerted efforts to consolidate its reputation as a global human rights promoter and generous resettlement country for refugees. Between 1993 and 1996, it increased its annual quota of offshore resettlement places to over 16,000,36 while it also played a key role in drafting a number of international disarmament treaties (RCOA, 2014; Pert, 2014, pp.148- 149, Gyngell, 2016, p.222).37 In addition, it presided over a General Assembly resolution on enhancing the United Nations’ capacity for peacebuilding and preventive diplomacy in the aftermath the Bosnian and Rwandan conflicts (Pert, 2014, pp.140-141). and introduced the Special Assistance Category (SAC) in 1991 in order to assist individuals that faced widespread human rights abuses in civil war situations (Jupp, 2007, pp.182-183).

The cumulative effect of these developments was that by the mid-1990s, Australia’s ongoing retreat from its international obligations to asylum seekers faced relatively few domestic impediments. As the next section will demonstrate, the creation of a more permissive environment for norm violation in turn paved the way for the incoming Howard government to implement the Pacific Solution in the same way that a more amenable environment had facilitated Rudd’s asylum seeker policy changes in 2007.

The Howard Government and the ‘Pacific Solution’

In 1996, Labor’s thirteen-year stranglehold on the Prime Ministership ended with the election of Liberal-National Coalition leader John Howard. After taking office, Howard harnessed the

35 Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh [1995] HCA 20. 36 The number of allocated places had been increased from 14,070 in 1993-1994 to 16,252 in 1995-1996. 37 Such as the Chemical Weapons Convention (CWC), the Comprehensive Nuclear-Test-Ban Treaty (CTBT), and the Nuclear Non-Proliferation Treaty (NPT). 94 contemporaneous current of public opinion by declaring that the Australian people had grown tired of the “political correctness” that continued to stifle debate on key issues such as immigration and asylum seekers (Howard, 1996). In addition, he argued that his primary duty as leader was to provide a “fair go” for all Australians by strengthening the “credibility and integrity of Australia's border controls” (Liberal & National Party Coalition, 1996, p.11; Department of Foreign Affairs and Trade [DFAT], 1997, p.iii).

Unlike his Liberal predecessor Malcolm Fraser, Howard had never supported Australia’s multicultural immigration policy. In 1988, the then-Opposition leader released the policy paper Future Directions, where he stated that Australia should not “elevate a whole range of different cultures, customs and values and accord them all equal status within the Australian way of life” (Liberal/National Party of Australia (1988, pp.92-93). This view was further reinforced in August when he stated that “it would be in our immediate-term interest and supportive of social cohesion” to slow down Asian immigration (cited in Tate, 2009, p.110). Howard’s claims not only drew the ire of politicians from both sides of the political divide, but also contributed to his replacement as Opposition leader in 1989 (Mahoney, 1988; Pert, 2014, p.142; Jupp, 2007, pp.106-107). However, the changing dynamics of Australia’s socio-political environment had ensured that his exclusionary views were far more favourably received in 1996.

Howard’s publicly expressed misgivings about immigration and multiculturalism in turn had two immediate consequences that would have significant implications for how the domestic meaning-in- use of international asylum seeker norms would be interpreted between 1996 and 2007. First, they had exposed an undercurrent of public opinion that immigrants had a destabilising impact on Australia’s social cohesion and were getting preferential treatment at the expense of ‘ordinary Australians’ (Richards, 2008, p.312). Second, they encouraged other politicians to openly declare their own misgivings on the issue. The most notable example was Pauline Hanson’s maiden speech to parliament in 1996, where she cautioned that Australia was “in danger of being swamped by Asians” (Commonwealth [HoR], 10 September 1996, p.3862). These misgivings were further compounded when a greater proportion of irregular migrants began to arrive from the Middle East in order to escape the dictatorship of Saddam Hussein in Iraq and the Islamic fundamentalist Taliban regime in Afghanistan (Jupp, 2001, p.13; Dunn, Klocker & Salabay, 2007, p.569; Gibbings, 2010, pp.18-19). Since Australia’s previous experience with boat arrivals had been largely limited to the Asia-Pacific region, its historical unfamiliarity and cultural dissimilarity with the new arrivals directly influenced how the validity of their claims would be perceived. 95

These socio-political developments were in turn accompanied by a number of significant policy changes that further curtailed the rights of asylum seekers in Australia. In July 1996, the onshore component was amalgamated into Australia’s humanitarian program, sending a clear signal that the government was not willing to accommodate boat arrivals in addition to its annual resettlement intake (Waxman, 2000, p.65). At the same time, the government became increasingly vehement in rejecting international criticism of its hardline asylum seeker policies. When the UN Human Rights Committee found in 1997 that the lengthy detention of Chu Kheng Lim had contravened Articles 2 and 9 of the ICCPR, the government refuted claims that his detention had been arbitrary and maintained that “is up to countries to decide whether they agree with those views and how they will respond to them” (Ruddock & Williams, 1997). In addition, it categorically rejected the key finding in the 1998 HREOC report For those who’ve come across the seas that “[t]he conditions of detention are inadequate and in violation of human rights” (HREOC, 1998, p.iv). While it demonstrated that it was willing to provide additional ad hoc protections to refugees from specific conflict zones when it created the Safe Haven Visa in April 1999 in order to accommodate 4000 Kosovar Albanian refugees (Howard, 1999), its restrictive three-month duration was strongly criticized by some media outlets (Refugee crisis needs, 1999). Nevertheless, the Migration Legislation Amendment (Temporary Safe Haven Visas) Bill 1999 (Cth) was speedily passed on April 30 on the rationale that it was sufficient to fulfil Australia’s role in “alleviating the massive suffering and human tragedy that has developed in Kosovo” (Commonwealth [HoR], 11 May 1999, p.5022).

During its first three years in office, the Howard government justified its increasingly hardline approach to boat arrivals by assertion that they were necessary in order to “strike a proper balance between compassion and the national interest” (Howard, 1998a; Howard, 1998b). However, while Howard remained adamant that Australia was “a very open and tolerant society [that] took more Indo- Chinese refugees on a per capita basis than any other nation in the world” (Howard, 1997), these claims were further called into question when he introduced the Temporary Protection Visa (TPV). The three-year permit, which applied to all asylum seekers who were subsequently found to be refugees, once again altered the domestic meaning-in-use of international asylum seeker norms.38 In addition to restricting their ability to be permanently resettled in Australia, it also prohibited them from sponsoring their families and prevented them from re-entering the country if they left (Mansouri, Leach & Nethery, 2009, p.136). The new measures were strongly opposed by both Greens and the Australian Democrats, with Greens Leader Bob Brown arguing that it “breach[ed] Australia's

38 While the Refugee Convention does not stipulate that refugees must be accorded permanent protection, UNHCR guidelines stipulate that “the grant of temporary protection is only appropriate as an exceptional measure in circumstances of mass arrivals of asylum-seekers, where individual refugee status determination is impractical.” Australia’s use of TPVs has consequently been criticised for punishing asylum seekers “on account of their mode of arrival” in contravention of both the non-penalisation (Article 31) and non-discrimination (Article 3) clauses, while it has also been claimed that it contravenes the “Principle of the unity of the family’ (B): UNHCR, 2018b; Kaldor Centre for International Refugee Law, 2019. 96 international commitments [and] Australia's national ethic of a fair go” (Commonwealth [Senate], 24 November 1999, p.10611; see also pp.10599-10602). Nevertheless, the Migration Regulations Amendment 1999 (Cth) was once again passed with bipartisan support in October 1999.

The cumulative impact of these developments was that when the number of boat arrivals once again began to increase in 1999,39 it immediately triggered domestic concerns that Australia was facing a new “[w]ave of illegal migrants” (Peatling, 1999; Roberts, 1999; Dore, 1999). All three major news outlets40 began to publish alarmist reports that Australia was being targeted by sophisticated people smuggling rackets from China and Iraq that were intent on transporting their “human-cargo” to Australia (Lague, 1999; Dodd & Kowt, 1999; Videnieks, 1999). These fears were further exacerbated by Immigration Minister Philip Ruddock, who announced in November that Australia was about to be swamped by 10,000 boat arrivals from the Middle East (Cauchi, 1999). In order to demonstrate its resolve to prevent “queue-jumpers [from] push[ing] in ahead of genuine refugees” (cited in Koutsoukis, 1999; L. Martin, 1999), the government passed the Border Protection Legislation Amendment Act 1999 (Cth) on November 25, which significantly enhanced its ability to interdict and board vessels that were suspected of being used for people-smuggling purposes (Commonwealth [HoR], 9 December 1999, p.13372).

The year 2001 marked yet another significant turning point in Australia’s asylum seeker policy. On 26 August, 433 mainly Afghan asylum seekers were rescued from their sinking vessel by the Norwegian container ship MV Tampa following an Australian-coordinated search and rescue operation (W. Maley, 2002, p.19; J. Phillips & Spinks, 2013a, p.9). When the government refused to allow the asylum seekers to disembark at Christmas Island and ordered the captain, Arne Rinnan, to return to international waters, he remained near Australia’s territorial waters as some asylum seekers threatened to jump overboard if they were taken to Indonesia (Pert, 2014, p.162). The so-called ‘Tampa Crisis’ engendered a significant public backlash, with a survey of radio talkback responses finding that 71% of callers had negative feelings towards the passengers (Price, 2001; Gibney, 2004, pp.188-189). Significantly, all three major media outlets were generally sympathetic to the plight of the passengers. The Age argued that a hardline response “would be destructive, divisive and would inflict long-term damage on Australian society and the nation's reputation in the world community” (Politics and the boat people, 2001), while the Australian accused the government of turning the situation into “an offensive, inhumane embarrassment” (PM’s refugee bungling, 2001; see also Kingston, 2001; Garran & Carson, 2001; Lamont & Tomas, 2001). This in turn reinforces the

39 Between 1998 and 1999, the number of boat arrivals increased from 200 to 3,721: J. Phillips & Spinks, 2013, p.23. 40 This term will be used in Chapters 4 and 5 when similar sentiments were expressed by the Australian, the Sydney Morning Herald and the Age. 97 argument that just as political elites can choose from a range of options when formulating their policies, they can elicit a range of different responses in the public sphere.

As the condition of some of the passengers further deteriorated, Rinnan re-entered Australia’s territorial waters following three days of negotiations, upon which Australian Special Air Service (SAS) troops took control of the vessel (McAdam & Purcell, 2008, pp.93-94). Within hours, the Border Protection Bill 2001 (Cth) was rushed into parliament in order to authorise the government to order the removal of any vessel from Australia’s territorial waters, thereby ensuring the retrospective validity of the government’s actions. Once again, Howard justified his actions by asserting that while “[n]obody is lacking in compassion for genuine refugees…every nation has the right to effectively control its borders and to decide who comes here and under what circumstances” (Commonwealth [HoR], 29 August 2001, p.30517; Howard, 2001a). When Labor broke with the bipartisan consensus that had characterised Australia’s asylum seeker policy since the early 1990s by refusing to support the bill (Commonwealth [Senate], 29 August 2001, p.26971), Howard accused Opposition leader Kim Beazley of “trying to walk both sides of the street on this issue” by failing to support hardline measures whilst maintaining a tough public stance on asylum seekers (Commonwealth [HoR], 30 August 2001, p.30663). As Chapter 4 will demonstrate, Howard’s claim of hypocrisy was markedly similar to the Coalition’s reaction to Labor’s response to the Jaya Lestari 5 and Oceanic Viking stand-offs. In both cases, these arguments significantly diminished the credibility of their opponents by demonstrating that they had contravened their own policy objectives.

Less than three weeks later, the devastating 9/11 terrorist attacks on the World Trade Centre and the Pentagon not only engendered a seismic shift in the global geopolitical landscape, but also enabled Howard to once again shift the normative parameters of the asylum seeker debate by reframing boat arrivals as exogenous threats. In addition to declaring that Australia would do its part to defeat the global threat of Islamic terrorism, the Howard government moved swiftly in order to fortify its border protection regime (McAdam & Purcell, 2008, p.94; McMaster, 2002a, p.286; O’Doherty & Augoustinos (2008), p.577). On September 18, the Federal Court of Australia validated the government’s actions during the Tampa Crisis in Ruddock v Vadarlis41 by declaring that “the executive power of the Commonwealth [extends] to a power to prevent the entry of non-citizens and to do such things as are necessary to effect such exclusion” (at 193). The decision in turn paved the way for the government to introduce a raft of new legislative measures on September 27 that would henceforth be known as the ‘Pacific Solution.’ The Border Protection (Validation and Enforcement Powers) Act 2001 (Cth) authorised the Australian Defence Force (ADF) to detain and turn around

41 Ruddock v Vadarlis [2001] FCA 1329. 98

Suspected Irregular Entry Vessels (SIEV) under Operation Relex. In addition, the Migration Amendment (Excision from Migration Zone) Act 2001 (Cth) excised Christmas Island, Ashmore and Cartier Islands, and Cocos (Keeling) Islands from Australia’s Migration Zone. Finally, the government signed agreements with Nauru and Papua New Guinea in order to establish offshore processing centres there (J. Phillips, 2012).

The introduction of the Pacific Solution was also accompanied by a significant shift in political rhetoric as the government increasingly began to allude to the possibility that some of the boat arrivals could be terrorists. Three days after the 9/11 attacks, Defence Minister Peter Reith asserted that transit countries such as Indonesia could be used as a “launching pad for terrorist activities” (Allard, 2001; McGuiness, 2001). These claims in turn exacerbated negative public sentiments on the issue, with a Ray Morgan International Poll in late September finding that 68% (including 35% who voted for the Greens) supported the idea of putting asylum seeker boats back out to sea (Refugees not welcome, 2001). By characterising stronger border protection policies as a both a rational and a necessary response to a new omnipresent threat, the government had legitimated and subsequently normalised Australia’s hardline asylum seeker policy in both the political and public spheres. However, while these hostile domestic perceptions appeared to have become firmly entrenched, two separate incidents in October also raised serious concerns over the government’s apparent disregard for the human rights of asylum seekers.

On October 6, the SIEV 4 carrying 233 asylum seekers was intercepted by the HMAS Adelaide, prompting several passengers to jump overboard after threatening to take their own lives (McAdam & Purcell, 2008, p.98). In the days following the incident, the government claimed that some of the adult passengers had thrown their children overboard in a deliberate attempt to force the rescuers to take them to Australia (Slattery, 2003, p.93). However, when Howard condemned the purported actions of the asylum seekers by stating that “we do not want people like that in Australia” (Gordon, 2001), he was roundly condemned by all three major media outlets. The Sydney Morning Herald argued that the actions of the asylum seekers were “a measure of their desperation, not their despicability” (Asylum Overboard, 2001; Children the victims, 2001). When the government refused to provide definitive evidence to support its claims, The Age further asserted that the its actions constituted a deliberate attempt to “exploit the global refugee problem for its own political advantage [by] appealing to people's most unreasonable fears” (Demonising the boat people, 2001). The growing domestic anger over Howard’s handling of the incident was in turn encapsulated by the Australian, which declared that the government had made “truth the first casualty of its contrived war against boatpeople” (Evidence overboard, 2001). 99

On October 19, an estimated 353 people drowned when the SIEV X sank off the coast of Java. After reports emerged that the vessel had capsized, Howard claimed that Australia bore no responsibility for conducting a search-and-rescue mission as it had sunk in Indonesian waters (Murdoch, 2001). However, when the sheer scale of the disaster became apparent, Beazley argued that the deaths were directly attributable to the government’s failure to “ensure that those who put themselves in such danger are not encouraged to do so” (Beazley, 2001). Significantly, the hostile reaction to Beazley’s attempt to draw parallels between IMA deaths at sea and the government’s policies was markedly different to how similar arguments were perceived during the Rudd/Gillard era. Despite playing a crucial role in enabling the Coalition to de-legitimise Labor’s asylum seeker between 2010 and 2013, the different socio-political dynamics ensured that it had the opposite effect in 2001. After asserting that the deaths were “the fault of the people smugglers,” a furious Howard declared that it was “wrong [of] the Opposition Leader [to] link that appalling human tragedy with the policy of this Government” (Howard, 2001b). While the Australian chastised both men for engaging in an “unseemly slanging match over who was to blame [in] an unedifying grab for votes” (Boat tragedy demands more, 2001), a pre-election poll found that many voters agreed with Howard’s position that Beazley was a hypocrite for condemning the government’s policies while claiming that Labor supported Australia’s hardline asylum seeker policy (Saunders, 2001).

Despite struggling in the polls for most of the year, the Howard government’s rhetorical strategy of characterising IMAs as culturally incompatible outsiders and existential threats whilst simultaneously highlighting Australia’s humanitarian credentials enabled it to harness the current of public opinion in order to justify its hardline response to boat arrivals. In contrast, Labor’s support base began to dwindle in the leadup to the 2001 Federal Election as an increasing number of voters that were disillusioned with Beazley’s inconsistent stance on boat arrivals defected to the Coalition and the Greens (Forster, 2012, p.4; Exit One Nation, 2001). The normalisation of existential threat narratives on asylum seekers in turn played a crucial role in facilitating the Liberal Party’s emphatic election victory on November 10 (Slattery, 2003, p.103; Gibney, 2004, p.190; McAdam & Purcell, 2008, p.96). During his victory speech, Howard declared that while “we are a generous open hearted people taking more refugees on a per capita basis than any nation except Canada…we will decide who comes to this country and the circumstances in which they come” (Howard, 2001c).

The Pacific Solution ensured that no asylum seekers managed to reach Australia by boat in 2002 (Phillips & Spinks, 2013, p.23). However, while the Howard government had succeeded in stemming the flow of boat arrivals, its unyielding stance also triggered a domestic backlash as the adverse humanitarian consequences of its deterrence-based policies became increasingly apparent. In January 100

2002, asylum seekers went on a hunger strike, sewed their lips shut and destroyed buildings at the Woomera detention centre in order to draw attention to their lengthy detention. The government’s uncompromising response to these protests was not only vehemently criticised by refugee advocacy groups, but also led all three major media outlets to publish humanising stories of their plight (Refugees just want, 2002; K. Taylor, 2002; K. Burke & Clennell, 2002; Debelle & Secombe, 2001; Give detainees to us, 2002). The Pacific Solution had also created tensions within the Liberal party, with senior immigration adviser Neville Roache resigning in disgust after declaring that “[c]ompassion seems to have been thrown out the door” (J. Davies, 2002). Nevertheless, the government continued to maintain that Australia had a “sovereign right under international law to control which non-citizens may enter our borders” and to determine their treatment in accordance with its domestic laws (Ruddock 2001).

The growing domestic perception that the Howard Government had breached its normative obligations to asylum seekers under international law also led to a number of inquiries that condemned the government’s handling of the issue. The 2002 Senate Select Committee Inquiry on a Certain Maritime Incident found that the government had engaged in a “deliberate deception motivated by political expedience” when it misled the Australian public in the Children Overboard Affair (Senate Select Committee, 2002, p.xxii). Similarly, the 2004 HREOC report A Last Resort? National Inquiry into Children in Immigration Detention asserted that the “automatic, indeterminate, arbitrary and effectively unreviewable detention of children” constituted a direct contravention of the relevant principles of both the ICCPR and the CRC (HREOC, 2004, p.10). However, a series of controversial High Court judgments also revealed how limited its ability to interpret the scope of Australia’s international obligations had become under the Pacific Solution. In Al Kateb v Godwin42 and Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji,43 the High Court found that a detainee whose claim for refugee status had failed but who could not be returned to their country of origin or another receiving country could be detained for a potentially indefinite period. In Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs,44 it similarly held that the mandatory detention of a detainee was valid under the Migration Act even if he had been treated in a ‘harsh or inhumane’ way (Prince, 2004).

By the mid-2000s, the normative parameters of Australia’s asylum seeker policy appeared to have been firmly established. The tripartite policy norms of offshore processing, mandatory detention and restricted judicial review had been fully institutionalised in Australia’s domestic framework, while

42 Al Kateb v Godwin [2004] HCA 37. 43 Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji [2004] HCA 38. 44 Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36. 101 exclusionary narratives that characterised IMAs as the threatening ‘Other’ had become the dominant paradigm in the asylum seeker debate. Nevertheless, the Howard government’s hardline stance on boat arrivals had also strengthened the resolve of refugee advocates to challenge the normative status quo on boat arrivals. Just as they had during previous phases in its recent history, these shifting standards of normative appropriateness provided the necessary scope for political elites to once again alter the domestic meaning-in-use of international refugee and asylum seeker norms. As chapter 4 will demonstrate, Kevin Rudd’s ability to legitimate his claim in late 2006 that Australia had a non- derogable obligation to adhere to the Refugee Convention and associated human rights instruments depended as much on his own initiative as it did on the presence of a more amenable socio-political environment.

This in turn reflects the key finding in this chapter that the domestic meaning-in-use of international refugee and asylum seeker norms has not remained constant in the six decades since Australia ratified the Refugee Convention. Rather, it has oscillated in response to the actions of specific agents and other relevant stakeholders, the shifting norms, malleable structures and developing institutions that comprise Australia’s socially constructed identity, and a constantly evolving socio-political landscape.45 Instead of reinforcing Finnemore and Sikkink’s argument that the domestic applicability of international norms depends on their compatibility with the “historically formed ideologies or the structure of political discourse of a nation” (Finnemore & Sikkink, 2001, p.47), I have demonstrated that the narratives that have emerged from this discourse have changed over time. This in turn affirms the central contention in this thesis that the norm contestation process is both dynamic and context- specific.

Conclusion

The evolution of Australia’s refugee policy and subsequent bifurcation into two separate normative frameworks appears to affirm the prevalent view that while policy makers have historically taken a generous approach to ‘genuine’ refugees that are resettled under the auspices of controlled intakes, they have consistently sought to prevent ‘queue jumping’ IMAs from reaching its shores. However, this chapter has demonstrated that Australia’s hardline response to boat arrivals is neither pre- determined nor inevitable. Just as political elites have interpreted the scope of Australia’s international obligations to refugees and asylum seekers differently at specific points in time, the current of public opinion has not remained implacably hostile and has at times even prompted positive normative change. The preliminary findings that have emerged from this historical overview in turn

45 For a more detailed analysis, see Chapter 6. 102 provide the analytical foundation for examining both the emergence and subsequent repudiation of Labor’s humanitarian platform on IMAs in 2007.

103

Chapter 4

Hardline AND Humane?

Australia’s Asylum Seeker Policy under Kevin Rudd (2007 – 2010)

Introduction

When Kevin Rudd became Opposition leader in December 2006, he faced the arduous task of rebuilding a fractured party that had been unable to mount a successful challenge against the stalwart Howard government for four consecutive terms (Bongiorno, 2008, p.589). In order to support his claim that he had an “alternative vision for Australia's future” (Rudd, 2007d), Rudd presented himself as a policy entrepreneur who would take decisive action on climate change, asylum seekers and Indigenous rights in order to make Australia’s policies more congruent with international standards of normative appropriateness. On the politically contentious issue of boat arrivals, Rudd argued that Australia had a moral obligation to treat them with compassion because “[t]he biblical injunction to care for the stranger in our midst is clear” (Rudd, 2006a). During the 2007 Federal Election campaign, Rudd harnessed the growing public dissatisfaction with Howard’s leadership in order to legitimate his position that the Pacific Solution was both unethical and prohibitively expensive (Kefford, 2013, p.139; Brett, 2007, p.54). However, while his strategy of portraying himself as a fiscally conservative and socially progressive leader played a key role in facilitating Labor’s emphatic election victory, this chapter will demonstrate that Rudd’s subsequent attempts to implement a policy that was both ‘hardline and humane’ also contributed to his political demise.

During his first year in office, Rudd maintained his promise that Australia would comply with the “letter and the spirit [of] the Refugee Convention” (ALP, 2007, s153). By (partially) dismantling the Pacific Solution in 2008 and (re)introducing the binary between ‘criminal’ people smugglers and ‘vulnerable’ asylum seekers, Rudd once again altered the domestic meaning-in-use of international asylum seeker norms (Peterie, 2017, pp.356-357). However, the reframing of the normative parameters of the asylum seeker debate also prompted the Coalition to modify its position on the issue 104 in order to de-legitimise both the moral and practical foundations of Labor’s asylum seeker policy. As the volume of boat arrivals once again began to increase in late 2009, new Opposition leader Tony Abbott capitalised on Rudd’s failure to fulfil his election promise that he would protect Australia’s borders whilst treating IMAs with compassion by arguing that Labor’s policies were both ineffective and inhumane. Moreover, by drawing direct parallels between asylum seeker drownings at sea and Labor’s 2008 policy changes, Abbott provided a justificatory basis for the Coalition’s claim that the reintroduction of the Pacific Solution would protect the welfare of IMAs by preventing them from ‘risking their lives on leaky boats’ (Abbott, 2009b). These arguments not only diminished the normative foundation of Labor’s asylum seeker policy, but also created a legitimacy deficit that Rudd was unable to recover from.

I. The Road to Kevin ‘07

After suffering comprehensive election defeats in both the 2001 and 2004 Federal Elections, a growing number of senior Labor MPs agreed that Beazley “lack[ed] both the energy and electoral appeal” to defeat the indomitable Howard at the next election (P. Williams, 2008, p.107; Dyrenfurth & Bongiorno, 2010, p.186; Hartcher, 2009, p.40; Stuart, 2007, p.186). In addition to presiding over a buoyant economy and a record-low unemployment rate of 4%, Howard’s staunch support of the global ‘War on Terror’ and hardline response to IMAs had cemented his reputation as a resolute statesman whose decisive actions had ensured that only 15 boats had reached Australia’s territory between 2002 and 2007 (J. Phillips & Spinks, 2013, p.23; Williams, 2008, p.105; Manne, 2004, p.306; Aulich & Wettenhall, 2008, p.246; Qvortrup, 2008, p.271).

However, while the Coalition was poised to secure a fifth consecutive term in office in 2007, a series of contentious policy decisions also had the effect of weakening Howard’s seemingly unassailable grasp on the leadership (Hartcher, 2009, p.152). In addition to the political fallout from the Australian Wheat Board (AWB) scandal and the industrial relations reforms known as WorkChoices, Howard’s ongoing refusal to ratify the Kyoto Protocol fuelled the domestic perception that he had become increasingly “out of touch” with the needs of the Australian people (Hartcher, 2009, p.204; Dyrenfurth % Bongiorno, 2010, p.185; Aulich & Wettenhall, 2008, p.25). In October 2006, a Lowy Institute Poll found that 68% of respondents regarded global warming as a significant threat (Brett, 2007, p.53). Given that Australia was in the midst of a drought in 2006, Howard’s climate scepticism was, according to Williams, “particularly ill-timed” (Williams, 2008, p.108; Qvortrup, 2008, p.271). 105

In the two years leading up to the 2007 Federal Election, the Pacific Solution had also come under increased scrutiny as a number of damaging reports and incidents significantly weakened public confidence in its effectiveness (Brett, 2007, p.4). In 2005, two separate inquiries into the unlawful detention of Cornelia Rau and Vivian Solon found that the procedural safeguards of the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) were “generally weak and ineffective” (DIMIA, 2005, p.193). The Commonwealth Ombudsman further declared that immigration officers had “failed to take into account the basic human rights obligations that characterise a democratic society” in both cases (Commonwealth Ombudsman, 2005, p.31; P. Kelly, 2014, p.179; Aulich & Wettenhall, 2008, p.25). In December 2006, the Australian Council of Heads of School of Social Work (ACHSSW) published their independent report into Australia’s mandatory detention arrangements, which articulated the heightened frustration of refugee advocates with the “cold hearted indifference of the government to the suffering of these people” (ACHSSW, 2006, p.4). In July 2007, the detention of Indian doctor Mohammed Haneef on what turned out to be unfounded terrorism charges and subsequent cancellation of his visa was widely criticised in the public sphere as yet another example of the government’s proclivity for curtailing human rights in the name of national security (Hedley, 2007; Davis, Gibson & D. Welch, 2007; Steketee, 2007 Williams, 2008, p.110). And in August, the Oxfam report A price too high? found that the Howard Government had “spent more than $1 billion to process less than 1,700 asylum seekers in offshore locations” since mid-2001, amounting to more than half a million dollars per person (Bem et. al., p.3; Stats, 2017, p.100).

These findings not only galvanised the refugee advocacy movement, but also forced Howard to make a series of tactical concessions as members of his own party began to exert pressure on him to ease his hardline stance on IMAs (Every & Augoustinos, 2008, p.651; MacCallum, 2009, p.43). In mid- 2005, a number of Coalition backbenchers led by Petro Georgiou crossed the floor in parliament in order to challenge the Howard Government’s mandatory detention policies (Williams, 2008, pp.106- 107). After protracted negotiations, Howard eventually relented and supported an amendment to the Migration Act to allow all women, children and families to be released into the community (Landers, 2005). When he attempted to excise the mainland from Australia’s migration zone in May 2006 by introducing the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 (Cth), the subsequent political outcry forced him to withdraw the bill (S. Taylor, 2006, pp.122-123). At the same time, a number of media outlets had also become increasingly critical of the Howard Government’s handling of the issue. Both the Australian and the Courier-Mail published a series of humanising reports that were sympathetic to the plight of asylum seekers (Dodd, 2007; Marshall, 2007; S. Mares, 2007), with the latter asserting that the Pacific Solution “wastes millions of taxpayer 106 dollars, extinguishes refugee claimants' legal rights and seriously harms their mental health” (Wenham, 2007; Detainees deserve to, 2007). The Sydney Morning Herald further encapsulated this view when it stated that “[t]he policy has been a low point in Australia's otherwise largely creditable immigration history, and should be phased out completely” (Meanness has rarely been, 2007).

By the end of 2006, Howard’s tenure as Prime Minister had consequently come under significant strain as senior Coalition MPs began to publicly express the view that the party’s continued dominance in the polls was predicated on a change in leadership. When reports surfaced that Howard had reneged on a deal with the then-treasurer Peter Costello to relinquish his position to him after the election, the ensuing dispute between the two men further amplified the perception that Howard had become a “partisan figure of conflict and division” (Adams, 2009, p.25). These developments in turn created a more amenable socio-political environment within which pro-asylum seeker narratives could be more effectively advanced. The next section will demonstrate that while structural and contextual factors played a crucial role in enabling Labor’s humanitarian platform on IMAs to gain traction domestically, it was Rudd’s leadership on the issue that completed the matrix of circumstances that would engender a normative shift on asylum seekers in 2007.

The Rise of Kevin Rudd

It was within this complex political environment that Labor MP Kevin Rudd penned his essay ‘Faith in Politics’ in The Monthly in October 2006. As early as 2005, Rudd had drawn on his Christian beliefs in order to support his position that the policy-making process needed to be shaped by “values of justice, equality and compassion” (Rudd, 2005) In the Monthly essay, Rudd went further by highlighting the normative consequences of the Howard Government’s hardline stance on boat arrivals. Drawing on the parable of the Good Samaritan, he argued that the Pacific Solution was a “cause of great ethical concern” and that the question of “how we should respond to the vulnerable stranger in our midst” (Rudd, 2006a, p.29) necessitated the implementation of policies that were derived from a “consistent moral ground” (Rudd, 2006a, p.24). Citing the example of the German theologian, pastor and peace activist Dietrich Bonhoeffer, who was executed for defying the Nazis, he further argued that Australia had a moral responsibility to increase Australia’s compliance with international asylum seeker norms in order to redress the collective failure of states to protect refugees in the past (Rudd, 2006a, p.29). In contrast, Howard was portrayed by Rudd as an “unreconstructed hypocrite” who used “radioactive language” that specifically targeted vulnerable groups in order to “retain his incumbency at all costs, distracting the body politic from the reality of his faltering program for government” (Rudd, 2006a, p.29). Two months later, he also wrote a scathing assessment 107 of Howard’s economic policies entitled where he argued that “this country is entitled to a greater vision than one which merely aggregates individual greed and self-interest” (Rudd, 2006b).

Both the content and timing of the essays had a specific political purpose. First, they clearly denoted Rudd’s leadership ambitions at a time when Beazley’s approval ratings were in rapid decline (Williams, 2008, p.107). Second, by denigrating Howard’s economic performance while making a point of differentiating his normative stance on climate change and IMAs, Rudd set the parameters for how the 2007 Federal Election would be contested. On December 4, Rudd comfortably won the leadership ballot over Beazley, while Julia Gillard was elected unopposed as his deputy (Macklin, 2007, p.174). In the process, he not only became the face for a fresh and invigorated Labor Party, but also paved the way for another shift in how the domestic meaning-in-use of international asylum seeker norms would be interpreted and subsequently applied.

The 2007 Federal Election Campaign

Upon assuming the mantle of Opposition leader, Rudd set about implementing a “new style of leadership” that would appeal to a broad spectrum of voters (Williams, 2008, p.107). In addition to making frequent appearances on the morning television show Sunrise and utilising social media platforms in order to reach younger voters, Rudd’s catchy campaign slogan, ‘Kevin 07,’ offered the promise of a “modern and urbane” party. In contrast, the Coalition appeared to be “tired, bereft of ideas, and ill-prepared for the coming years” (Williams, 2008, p.105; Dyrenfurth & Bongiorno, 2010, pp.186-187; Kefford, 2013, p.137; Aldworth, 2008-9, p.53). In addition to highlighting his comparative youth over Howard’s advanced age, Rudd’s primary campaign strategy was to emulate Howard’s policy strengths whilst simultaneously exploiting his perceived weaknesses.

During the election campaign, Rudd was frequently accused by the media of engaging in ‘me-tooism’ by appropriating Howard’s long-standing pledge to help “working families [under] financial pressure” (Tax policy linked, 2007; Megalogenis, 2007). Nevertheless, his claim that the Howard Government was engaging in “reckless spending” was directly aimed at strengthening his pledge that he would implement a ‘conservative fiscal policy’ that would put an end to the government’s financial excesses (Robertson, 2007; Rudd, 2007b). At the same time, Rudd pointed to Howard’s continued refusal to acknowledge climate change, which he called “the great moral challenge of our generation,” as irrefutable evidence that he was incapable of meeting the challenges of the twenty-first century (Rudd, 2007c; Hartcher, 2009, p.204). By promising that Labor would immediately ratify the Kyoto Protocol upon being elected (Dyrenfurth & Bongiorno, 2010, p.187), Rudd consolidated his self- portrayal as a policy entrepreneur that would not only take Australia’s normative obligations 108 seriously, but also take an active role in complying with them (Rudd, 2007a; M. McDonald, 2011, p.286).

While asylum seekers were not a key issue of debate in the leadup to the 2007 Federal Election, Rudd’s campaign strategy also informed how he opted to challenge Howard’s normative position on boat arrivals. In late July, Labor adopted its National Platform and Constitution, where it pledged that Australia would “assist the world's most vulnerable [by] comply[ing] with the letter and the spirit [of] the Refugee Convention and other relevant international instruments” (ALP, 2007, s153). However, while Rudd maintained that he would support “the global consensus and machinery for dealing with refugee challenges into the future” (Marr, 2010a, p.67; Donald & Iggulden, 2007), he also asserted that his government would retain some of the key pillars of Australia’s border protection regime. On the eve of the election, Rudd told the Australian that his policy would be based on “effective laws, effective detention arrangements (and) effective deterrent posture vis-a-vis vessels approaching Australian waters” (P. Kelly & D. Shanahan, 2007; ALP, 2007, s157).

According to Manne, these seemingly contradictory policy objectives were “hardly the action[s] expected of a contemporary Good Samaritan” (Manne, 2013, p.23; P. Kelly, 2014, p.177). However, I argue that one of the key reasons why Rudd’s argument that Australia had a duty to enhance its compliance with international asylum seeker norms succeeded was that it was also congruent with his broader political message. By condemning the Pacific Solution as a “waste of taxpayer’s money” (O’Brien, 2007), he imbued his moral indignation with an added financial imperative. This tactic in turn enabled him to gain the support of both swing voters and ‘soft’ conservatives who were drawn to Rudd’s dual promise of fiscal conservatism and social progressiveness (Williams, 2008, pp.123- 124; Crock, 2010a, pp.3-4; Van Onselen & Senior, 2007, p.vi). On 24 November 2007, the effectiveness of this strategy was verified when Labor achieved a comprehensive election victory against the Howard Government by presiding over a nation-wide swing of over 5%, the third largest achieved by any party since 1949 (Dyrenfurth & Bongiorno, 2010, p.189).

The above analysis of Australia’s normative shift on asylum seekers in 2007 further affirms the key assumptions that underpin the discourse-analytical conceptual framework that was developed in Chapter 1 of this thesis. First, it reflects the central contention of CNR scholars that since norms are “both structuring and socially constructed through interaction in a context [they] always remain flexible by definition” (Wiener, 2014, p.27). Rather than maintaining the normative status quo on a politically contentious issue, Rudd’s perception that recent changes in Australia’s socio-political environment had paved the way for the introduction of “new leadership with fresh ideas for the future” 109

(Rudd, 2007d) led him to challenge the dominant narrative on asylum seekers. Of course, this amenable domestic environment was at least partially attributable to the fact that the Pacific Solution had in fact achieved its key objective of stemming the flow of boat arrivals to Australia. Between 2002 and 2007, only 276 IMAs had managed to reach Australia’s territory, a significant reduction from the 12,429 that had arrived between 1997 and 2002 (J. Phillips & Spinks, 2013b, p.23). As irregular migration retreated from the political agenda and subsequently became less of a national security concern, the concerns of refugee advocates were more readily received by a broader cross- section of the Australian public. Nevertheless, Rudd’s ‘hardline and humane’ approach also reflected an awareness that a complete repudiation of the policy norms that had underpinned Australia’s deterrence-based framework on boat arrivals since 1980 was politically untenable. His promise that he would maintain a robust border protection regime while treating IMAs with compassion consequently had a significant impact on how the asylum seeker issue would be contested in both the political and public spheres between 2007 and 2013. Therefore, Australia’s variable political response to refugees and asylum seekers is directly attributable to the mutually constitutive interactions of initiative-taking agents, the evolving practices, structures and institutions that comprise a state’s socially constructed identity, and context-specific changes in its socio-political environment.

Second, it demonstrates that while Rudd maintained that the imperative to help the ‘vulnerable stranger’ was motivated by altruistic concerns, it also had the specific political purpose of enhancing his claim to the leadership by de-legitimising both the moral and practical foundations of the Howard government’s hardline stance on IMAs. Rather than convincing Howard of the normative appropriateness of his policy stance, Rudd opted to manoeuvre him into a rhetorical corner by claiming that the Pacific Solution was both unethical and prohibitively expensive. In the process, he was able to neutralise the Coalition’s strong performance on the economy and border protection, which had played a crucial role in facilitating its victories in the 2001 and 2004 Federal Elections. These findings turn lend further support to the argument that norm contestation rarely comprises the relatively benign socialisation process that was envisioned by first-generation constructivists. As the next section will demonstrate, Rudd’s rearticulation of the domestic meaning-in-use of international asylum seeker norms not only had the short-term effect of enhancing Australia’s compliance with its international obligations, but also led his opponents to gradually refine their political response in order to de-legitimise the normative basis of Labor’s humanitarian platform on IMAs.

110

II. The First Rudd Government (2007 to 2010)

During his first year in office, Rudd enjoyed unprecedented levels of domestic support as he ratified the Kyoto Protocol, issued a public apology to the Stolen Generation, abandoned the much-maligned WorkChoices and removed Australian combat personnel from Iraq (Dyrenfurth & Bongiorno, 2010, p.189; Newspoll: Net Leaders, n.d.). Within this acquiescent socio-political environment, Labor’s plan to dismantle the most contested aspects of the Pacific Solution engendered relatively little controversy. In February 2008, the offshore detention facilities on Nauru and Manus Island were closed down, ostensibly putting an end to Howard’s Pacific Solution (Peterie, 2017, p.358). On May 13, Rudd abolished TPVs, which Immigration Minister Chris Evans called “one of the worst aspects of the Howard government’s punitive treatment of refugees” (Skilled migration gets boost, 2008). In addition, it reinstated the right of IMAs to apply for permanent residency while also granting them the same benefits and entitlements as permanent protection visa-holders (Stats, 2017, pp.102-103). In July, Evans further unveiled Labor’s New Directions in Detention policy. While mandatory detention would remain an important aspect of Australia’s policy framework, it would only be used as a ‘last resort,’ while children were to be fully exempted (Evans, 2008a; Karlsen, 2010).

These changes in turn strengthened the government’s claim that its policies were primarily aimed at protecting the human rights of asylum seekers (Stats, 2017, p.102). On November 17, Evans told the Refugee Council of Australia (RCA) that in order to “remove the stain from Australia’s international reputation [we] need to do everything we can to maximise the impact of our contribution to the international system of refugee protection” (Evans, 2008c). Similarly, Rudd’s speech in parliament on the sixtieth anniversary of the UDHR on December 2 reiterated Labor’s commitment to “mak[e] changes when our policies do not live up to our national commitment to the proper protection of human rights” (Rudd, 2008a; Rudd, 2008b). However, while refugee advocates praised Labor for rectifying “a policy which damaged highly vulnerable people” (Power, 2009, p.1), Rudd had also stopped short of fully repudiating the Howard government’s asylum seeker policies. In addition to retaining the recently-built detention centre on the excised territory of Christmas Island, section 198 of the Migration Act, which provided the statutory basis for ‘offshore entry persons’ to be taken to a declared country for processing, also remained unchanged (Manne, 2013, p.23; Stats, 2017, p.105).

In order to rationalise this apparent disconnect between principle and practice, the government asserted that while it would “honour our international treaty obligations [and] acknowledge the centrality of the humane treatment of the individual” (Evans, 2008a, p.2), strong border protection measures were “not incompatible” with its humanitarian policies (Evans, 2008a, p.5). This ‘hardline and humane’ approach to policy formulation was further reinforced by the fact that while Rudd 111 categorically rejected Howard’s demonising representations of IMAs as the undesirable ‘Other,’ he placed increased emphasis on the criminality of the people smugglers that transported them to Australia’s shores. As the next section will demonstrate, this not only had the effect of creating a new binary that re-characterised IMAs as the vulnerable (and largely passive) victims of a new existential threat, but also played a crucial role in shaping the responses of Rudd’s political opponents (Stats, 2017, pp.103-104; Peterie, 2017).

‘[H]ard-line on people smugglers, humane on asylum seekers’46

Asylum seekers did not feature prominently in Rudd’s public statements and press releases for most of 2008. However, this changed when a boat carrying 12 asylum seekers was intercepted near Ashmore Reef on September 29 (Manne, 2013, p.24). In accordance with its newly rearticulated binary, the government responded by lambasting people smuggling as "an insidious trade where criminals exploit vulnerable people whose lives may be put at risk" (cited in Hudson, 2008). Conversely, the Coalition portrayed their arrival as definitive evidence that organised smuggling syndicates were “testing the waters” of Australia’s new border protection regime (cited in P. Maley, 2008a).

When 6 more boats brought the total number of IMAs that had arrived in 2008 to 161, Opposition leader Malcolm Turnbull argued that the numbers were a “wake-up call to Mr Rudd that his policy in August has been a mistake” (cited in Dodd, 2008; Davis, 2008). However, while the Coalition’s claim that Australia was facing a new ‘wave’ of asylum seekers was reiterated by all three major media outlets (P. Maley, 2008b; Allard, 2008; Allard & Smiles, 2008; Fitzpatrick, 2008), they also maintained Rudd’s distinction between ‘criminal’ people smugglers and ‘vulnerable’ IMAs. Despite rejecting the idea of “reinstating the Coalition's cruel and wrong-headed approach of punishing people who flee from death and persecution” (Steketee, 2008; Smiles, 2008), the Australian argued that “no responsible government anywhere wants to encourage even passively the unauthorised arrival of refugees [and] to reward people smugglers, who can be the most heartless of criminals” (An untested policy, 2009). In response to these criticisms, the government reiterated that its main priority was to protect IMAs by preventing them from “putting themselves and their families at enormous risk” by engaging the services of people smugglers (cited in Fitzpatrick & Dodd, 2008).

For most of 2009, the Rudd Government continued its policy of removing the most punitive aspects of Howard’s Pacific Solution while taking a hardline stance on people smuggling. In March,

46 (Evans, 2008b) 112

Indonesian boat captain Abdul Hamid was given 6-year jail term for attempting to smuggle 12 IMAs to Australia (People Smuggler jailed, 2009). In addition, Evans announced that the government would scrap the ’45 day rule’47 and add another 500 places to Australia’s humanitarian quota for 2008-09 (Stats, 2017, p.103). On September 8, Parliament also passed the Migration Amendment (Abolishing Detention Debt) Bill 2009, which amended the Migration Act in order to remove the statutory requirement for detainees to be liable for the cost of their detention (J. Phillips & Spinks, 2013a, p.14). However, Rudd’s claim that his asylum seeker policy complied with ‘the letter and the spirit’ of the Refugee Convention was soon called into question. When it was revealed in late January that 20 unaccompanied minors were being held in the Christmas Island detention centre, the refugee co- ordinator for Amnesty International, Graham Thom, asserted that "Australia is clearly in breach of the UN convention on the rights of the child" (cited in Narushima, 2009a; Colvin, 2009). This view was further reiterated in the Australian Human Rights Commission (AHRC) Immigration Detention Report, which asserted that the centre “undermines Australia’s international obligations under the Refugee Convention, the ICCPR and the CRC [and] looks and feels like a high-security prison” (AHRC, 2008, pp.73, 75; Commonwealth [Senate], 5 February 2009, p.401).

Domestic criticisms over the government’s handling of the asylum seeker issue were further amplified when reports surfaced on April 16 that a vessel carrying 49 people was intercepted near Ashmore Reef, bringing the total number of IMAs since the Rudd government’s asylum seeker changes were announced to 455 (Metherell, 2009; P. Maley & Fitzpatrick, 2009a). The Home Affairs Minister Bob Debus eventually announced that the SIEV 36 had exploded, killing up to 5 IMAs and injuring 44 others. The delayed announcement prompted both the Age and Sydney Morning Herald to compare the incident to the ‘Children Overboard Affair,’ while Shadow Immigration Minister Sharman Stone asserted that "[y]ou can't announce a softer policy and then not expect people to lose their lives through people smuggling" (cited in Coorey, 2009a; Grattan, 2009a). However, all three major media outlets agreed that the incident reinforced the imperative to reintroduce stronger border protection policies in order to prevent IMAs from risking their lives at sea. In an impassioned editorial, the Australian opined that “[in the] spirit of concern for some of the most vulnerable people in the world, the tragic deaths and injuries of those on the boat [have] highlighted the need for more effective policies…[w]hile the Government's changes to the Howard policies were justified, it cannot afford to have them perceived as soft” (Asylum seekers pose, 2009; Sheridan, 2009a; Grattan, 2009a; Knox, 2009; Coorey, 2009b). While these sentiments were also accompanied by alarmist reports that Australia was once again being targeted by a sophisticated people smuggling network carrying “well-

47 The ‘45 day rule’ prohibited applicants that failed to lodge their claim within 45 days of arriving in Australia from working or accessing Medicare while their claims were being processed. 113 dressed, well-resourced passengers [who] were taking an informed risk that Australia is now easier to enter” (P. Maley, Owen & Guest, 2009; Metherell, 2009; Is Evans ready, 2009; P. Taylor, 2009), the SIEV 36 incident demonstrates that humanitarian arguments were beginning to play an increasingly central role in the asylum seeker debate.

In response to these myriad domestic pressures, Rudd advanced two main counter-arguments. First, he maintained that the recent rise in IMAs was primarily the result of ‘push factors’ as ongoing conflicts in Afghanistan, Pakistan and Sri Lanka spurred greater irregular migration movements in the region (Coorey, 2009b; P. Maley, 2009a). Second, he used highly vitriolic language that emphasised the moral bankruptcy of people smugglers in order to deflect criticisms over the government’s ‘soft’ stance on border protection. On April 17, Rudd stated that “[p]eople smugglers are engaged in the world's most evil trade and they should all rot in jail because they represent the absolute scum of the earth…[t]hat's why this Government maintains its hard line, tough, targeted approach to maintaining border protection for Australia” (Rudd, 2009a; Rudd, 2009c). Significantly, Rudd’s increasingly combative rhetoric on people smugglers was also accompanied by a marked shift in the language that he used in order to characterise the act of seeking asylum. In addition to referring to irregular migration as “global threat,” he described the challenge of maintaining Australia’s borders as “a fight which we have been engaged in for some time” (Rudd, 2009a; Rudd, 2009b).

Rudd’s increased use of hardline rhetoric on boat arrivals was also attributable to the fact that his leadership had come under increased pressure on a number of other policy fronts during 2009 (The Age Readers’ Poll, 2009; P. Maley, L. Taylor & Toohey, 2009). Despite being widely credited with protecting Australia from the “worst economic turndown for 80 years” as the Global Financial Crisis (GFC) crippled economies across the globe (Dyrenfurth & Bongiorno, 2010, pp.189-190), Rudd’s 75 billion economic stimulus package was criticised for contravening Rudd’s election claim that he was a fiscal conservative (Holmes & Fernandes, 2012, p.1). In addition, Rudd’s attempt to introduce Labor’s climate change legislation48 to Parliament on May 14 was not only opposed by the Coalition, but also subsequently rejected by the Senate, forcing Rudd to delay the Carbon Pollution Reduction Scheme (CPRS) until July 2011 (Holmes & Fernandes, 2012, p.6; Rudd, 2009d). The cumulative impact of these developments was that by mid-October, the compassion rhetoric that Rudd had utilised during his first year in office had undergone a significant transformation. However, while a sudden increase in boat arrivals in late 2009 prompted the government to further harden its stance on

48 Including a proposed Emissions Trading Scheme (ETS) and Carbon Pollution Reduction Scheme (CPRS). 114

IMAs, the next section will demonstrate that it was the humanitarian consequences of Rudd’s policy retreat that would come under most scrutiny by the Coalition.

The Jaya Lestari 5 and Oceanic Viking Stand-Offs

On October 10, the Jaya Lestari 5, which was carrying 260 asylum seekers from Sri Lanka, was intercepted by Indonesian authorities en route to Australia and taken to the port of Merak. Once the vessel had landed, the passengers refused to disembark unless they were offered a resettlement deal with either Australia or another first-world country (Neilson, 2010, p.125). As a stand-off between the IMAs and Indonesian authorities ensued, the government faced its first litmus test of how it would apply its ‘hardline and humane’ policy to a Tampa-style situation (Stats, 2017, p.111).

Once again, Rudd refrained from directly targeting the IMAs while calling the people smugglers that had transported them “vermin” (Rudd, 2009f), a “scourge,” and the “vilest form of people on the planet” (Rudd, 2009g). However, when it emerged that he had made a personal request to Indonesian President Susilo Bambang Yudhoyono to intercept the vessel, the moral foundation of Labor’s ‘hardline and humane’ approach came under direct public scrutiny. The Australian argued that he had merely “substituted the Pacific Solution for the Indonesian Solution” in a desperate attempt to prevent an already overcrowded Christmas Island from reaching full capacity, a sentiment that was also shared by the Sydney Morning Herald (P. Kelly, 2009a; Coorey & Narushima, 2009). The Age also accused him of reneging on his 2007 election campaign promise that his government would honour Australia’s international obligations to asylum seekers by seeking a strategic partnership with Indonesia, a country that was not a signatory to the Refugee Convention (Haigh, 2009; Butterly & Probyn).

Faced with a growing chorus of criticism over his handling of this latest asylum seeker ‘crisis,’ Rudd declared that “the Australian Government makes no apology whatsoever for deploying the most hardline measures necessary to deal with the problems of illegal immigration” (Rudd, 2009e). The statement constituted the most direct challenge yet of his erstwhile claim that the scope of Australia’s international obligations under the Refugee Convention and associated human rights instruments extended to asylum seekers, even if it continued to be carefully worded in order to avoid directly denigrating them. When the passengers of the Jaya Lestari pleaded with him to “[p]lease help us and save our lives” (cited in Fitzpatrick, 2009), Rudd asserted that he would not be “moved by any particular tactics deployed by any particular person” (Rudd, 2009h; Rudd, Albanese, Rann & Conlan, 2009; Grattan & Allard, 2009a). He further justified Labor’s renewed hardline stance on asylum 115 seekers by arguing that “[i]t is irresponsible for any prime minister of Australia to send out a message of positive encouragement to people-smugglers in the region” (cited in P. Maley & Franklin, 2009a).

Rudd’s portrayal of boat arrivals as illicit threats was arguably aimed at invoking the same type of domestic response that had enabled Howard to harness negative public opinion on IMAs for political gain in 2001. However, it wound up having the opposite effect as political commentators became increasingly vocal in claiming that Rudd was a hypocrite for continuing to espouse the government’s humanitarian stance on IMAs whilst simultaneously appearing to reject it. The Australian’s Paul Kelly argued that the stand-off had exposed the “inhumanity of Rudd's so-called more humane stance” (P. Kelly, 2009b), while policy analyst Adrienne Millbank was more direct when she asked: “if Kevin Rudd believes in the Refugee Convention, why is he spending so much time and money preventing people from using it?” (Millbank, 2009b). Refugee advocates similarly accused the government of “demonis[ing] asylum-seekers merely by association” by using vitriolic language in order to denigrate people smugglers (Kerr, 2009) and echoing the “rhetoric of the past” by emphasising their purported illegality (Uhlmann, 2009a). These arguments significantly diminished the efficacy of Rudd’s claim that his government had managed to balance “a tough, hard-nosed approach to border security [with] a humane approach to our international obligations” (Rudd, 2009g).

Eight days after the Jaya Lestari stand-off had begun, the Australian customs vessel MV Oceanic Viking rescued 78 Sri Lankan Tamils from their distressed vessel in Indonesia’s Search and Rescue Region (Neilson, 2010, p.124). When Indonesia refused to give any guarantees that it would take responsibility for the IMAs, Rudd flew to Jakarta in order to engage in high-level talks with his Indonesian counterpart (P. Maley & Fitzpatrick, 2009b; Stats, 2017, p.112). Yudhoyono eventually agreed to process the Oceanic Viking passengers at Merak on the proviso that Australia would provide additional funding to Indonesia to intercept and detain asylum seekers (Merritt, 2009). Despite Foreign Minister Stephen Smith’s assertion that the agreement was a “very good humanitarian result [and] good example of co-operation between Australia and Indonesia” (cited in Van Onselen, 2009a), it sparked renewed criticism over the adverse humanitarian consequences of Labor’s asylum seeker policy (Bender, 2009; Colless, 2009). Within this shifting domestic landscape, Rudd’s claim that the human rights of the passengers would be protected in Indonesia (Rudd, 2009h) did little to countervail the growing perception that he had “faced his first moral test and stumbled” (On boatpeople, 2009; P. Maley, 2009b). 116

These developments in turn had significant implications for Labor’s continued ability to legitimate its asylum seeker policy changes to a domestic audience. By failing to situate his response to these maritime incidents within the rearticulated normative parameters that he had established in 2007, Rudd’s rhetoric on IMAs was no longer congruent with Australia’s contemporaneous socio-political climate. This in turn paved the way for the Coalition to advance its own political agenda on boat arrivals by directly challenging the normative foundation of Labor’s asylum seeker policy. For most of 2009, Opposition leader Malcolm Turnbull’s response had been largely limited to the alarmist assertion that Rudd had "laid out the welcome mat [and] held the door right open [for] what looks like being the beginning of a flood” of asylum seekers (cited in Rodgers, 2009b). However, as the fallout from the stand-offs began to have a discernible impact on Rudd’s political credibility, Turnbull increasingly appropriated Rudd’s erstwhile compassion rhetoric for his own purposes. In parliament, he accused Labor of “outsourcing Australia’s generous humanitarian immigration program to the predations of people-smugglers [while] exposing the vulnerable victims of this pernicious trade to the great danger of making perilous journeys across the ocean in unseaworthy vessels” (Commonwealth [HoR], 20 October 2009, p.10353).

In response, Rudd accused the Coalition of feigning humanitarian concern while continuing to perpetuate a “culture of fear” by using alarmist rhetoric in order to inflate the number of IMAs that were heading to Australia’s shores (Commonwealth [HoR], 21 October 2009, p.10533; Commonwealth [HoR], 22 October 2009, pp. 10742-10743). When Turnbull failed to discipline Liberal MP Wilson Tuckey after he drew parallels between boat arrivals and transnational terrorism (Rudd, 2009i), Rudd asserted that his silence had “shred anything in terms of a consistent moral compass on any of these matters” (Commonwealth [HoR], 22 October 2009, p.10756). Nevertheless, it was Rudd’s own moral compass that continued to be put under the spotlight. Chief Executive of World Vision Tim Costello lambasted him for using the term ‘illegal’ in order to describe irregular migration movements, a characterisation that contradicted the UNHCR’s own terminology for asylum seekers (Coorey, Narushima & Murdoch, 2009; Grattan, 2009b). This sentiment was in turn echoed by Stone, who maintained that the term should only be applied to people smugglers and that Rudd’s change in rhetoric was primarily aimed at “meet[ing] the anxieties of the right wing in his party” (cited in Schubert & Grattan, 2009).

The growing domestic perception that Rudd’s ‘hardline and humane’ approach was both hypocritical and impractical led all three major media outlets to conclude that Labor’s asylum seeker policy was once again “essentially identical to the Howard government in its policy intent, morality and even its broad methodology” (Sheridan, 2009b; Wright, 2009a; Ackland, 2009; Van Onselen, 2009b; It’s time 117 to exorcise, 2009). According to the Australian’s Dennis Shanahan, Rudd’s attempt to “catc[h] the Coalition in a cleft stick while trying to appeal to both ends of his own support base” had failed to resonate because his punitive actions had become increasingly incompatible with his socially progressive political persona (D. Shanahan, 2009b). The notion that he had failed to fulfil his promise to enhance Australia’s compliance with international asylum seeker norms was further verified when it was revealed that the government had consistently failed to meet its target of processing 90% of protection visa claims within 90 days of lodgement (Murdoch, Davis & Coorey, 2009). Even more damaging was the revelation that the Rudd government was accepting fewer refugees as a share of the total immigration intake than at any time under the previous Coalition government, comprising only 7.5% in 2009-10 (Megalogenis, 2009).

On October 26, the Oceanic Viking arrived at the port off Pinang Island after being unexpectedly diverted from its original destination (Grattan, Murdoch & Katharine Murphy, 2009). When the passengers refused to disembark unless they were guaranteed resettlement in Australia, Rudd’s humanitarian credentials were once again put to the test. The Provincial Governor of the Riau Islands, Ismeth Abdullah, declared that it would not accept the IMAs because was “not a dumping ground for other countries” (cited in Allard, Pearlman, Grattan & Narushima, 2009). In addition, Indonesia’s Foreign Ministry spokesman Sujatmiko stated that his country would not violate their human rights by forcing them to leave the vessel (Fitzpatrick, Franklin, P. Maley, Dodd & Maiden, 2009; Allard & Grattan, 2009). As it became increasingly apparent that Rudd had lost control over the situation, both the Coalition and numerous media outlets agreed that the “embarrassing fiasco” was of the government’s own making (Grattan, 2009c; Crabb, 2009a). While Turnbull described the situation as a “distressing, disturbing outcome of a colossal policy failure” (Commonwealth [HoR], 28 October 2009, p.11263; p.11275), the Age stated that “[n]one of this needed to have happened if the Government had been prepared to meet Australia's obligations under the refugees convention” (Short- lived ‘Indonesian Solution’, 2009).

At the same time, the Coalition began to point out that the Rudd government was engaging in the very same practices that it had previously condemned. After outlining in parliament that over 80 children were currently being held on Christmas Island, Stone asserted that it constituted irrefutable evidence that Labor’s asylum seeker policy was “hypocritical, misleading and inhumane” by contravening its promise that no children would be held behind ‘razor wire’ (Commonwealth [HoR], 26 October 2009, p.11049). While Rudd responded to these claims by accusing the Coalition of “prid[ing] themselves on sitting outside the framework of international [law]” (Commonwealth [HoR], 27 October 2009, p.11075; Commonwealth [HoR], 26 October 2009, pp.10860-10861), his 118 actions also drew the ire of refugee advocates. John Highfield of the Asylum Seeker Interest Group accused Labor of engaging in “even worse human rights behaviour towards refugees and asylum- seekers than under the Howard Coalition government” (cited in Overington, 2009; Maiden & Dodd, 2009; Pearlman, 2009; Akerman, 2009). Nevertheless, Rudd remained adamant that the ‘Indonesian Solution’ constituted the most effective means of staving off an influx of boat arrivals from conflict zones in Sri Lanka and Afghanistan and that “our border protection policy will not change in response to any threats [of] harm or self-harm” (Rudd, 2009o; Rudd, 2009k, Rudd, 2009m; Rudd, 2009n).

The main consequence of this discursive shift was that by the end of October, there was a clearly discernible current of domestic opinion that Rudd had failed to honour his pledge to protect the ‘vulnerable stranger’ while keeping Australia’s sovereign borders secure from external threats. While the extent to which Labor’s dismantling of the Pacific Solution was to blame for the recent increases in IMAs continued to be debated by political commentators, they largely agreed that Rudd’s moral proselytizing had backfired on him (Carney, 2009; P. Kelly, 2009c). The Australian opined that “if you lay down fields full of moral landmines to blow up your opponents, you run the risk of stepping on one yourself” (Uhlmann, 2009b). As the next section will demonstrate, this growing public sentiment enabled the Coalition to further consolidate its rhetorical strategy of appropriating Rudd’s compassion rhetoric in order to diminish the moral foundation of Labor’s asylum seeker policy. Under the auspices of new Opposition leader Tony Abbott, the ‘drownings argument’ not only became an increasingly central facet of the asylum seeker debate, but also played a decisive role in de- legitimising both pillars of Rudd’s ‘hardline and humane’ approach.

The Rise of Tony Abbott

By mid-October, Turnbull’s personal approvals ratings had fallen to 30%, their lowest since June 2008 (D. Shanahan, 2009a). Despite his consistent attacks on Rudd’s ‘Indonesia Solution,’ Turnbull’s failure to formulate a comprehensive policy response on climate change and asylum seekers had significantly decreased public confidence in his ability to lead the Coalition to victory in the next federal election (Opposition turns the political, 2009; Michelmore, 2009; Coorey, 2009c). However, while Labor’s primary vote had remained relatively strong at 48% (D. Shanahan, 2009a), a Newspoll in early November also showed that the Coalition's two-party preferred vote had increased by 7 points (from 41 to 48%) as Labor's fell by a similar margin (from 59 to 51%) (Franklin, 2009; Grattan, 2009d; Manne, 2013, p.24).

As the number of IMAs had reached Australia’s territory since the beginning of 2009 neared 2,400, Rudd’s continued inability to stem the flow of boat arrivals was starting to have a discernible impact 119 on his domestic popularity (Commonwealth [HoR], 24 November 2009, p.12609). Significantly, the Australian’s Peter van Onselen surmised that it was not the volume of asylum seekers, but rather “the way he has handled the whole affair -- trying to appeal to hardline border protectionists and human rights advocates simultaneously -- that has got him into a bother” (Van Onselen, 2009c; Grattan & Allard, 2009b). By attempting to “walk both sides of the razor wire,” Rudd had managed to simultaneously alienate both progressive and conservative voters (Talkback to the future, 2009). When combined with his inability to come to an agreement with the Coalition on the Emissions Trading Scheme (ETS) and damaging reports that his centralised leadership style was both demanding and abrasive (L. Taylor, 2009; Coorey & Wilkinson, 2009; No need to rush, 2009; Steketee, 2009b), it had become increasingly apparent that “Rudd’s long honeymoon [was] finally starting to end” (Abbott, 2009a).

It was within this highly contentious environment that Tony Abbott emerged as a serious contender for the Coalition leadership. Unlike Turnbull, Abbott was far more unequivocal in placing the blame for both the practical and humanitarian consequences of Labor’s asylum seeker policy changes squarely on Rudd’s shoulders. On November 1, reports emerged that a SIEV had sunk near Cocos Islands and that only 27 of the estimated 40 passengers had been rescued (Rudd, 2009l). Abbott responded by stating that “[y]ou look at this terrible tragedy that's unfolding [and] you've got to say this is a comprehensive failure and it's all the Prime Minister's fault” (cited in Coalition attacks PM, 2009). As Abbott’s political ambitions became increasingly apparent, Turnbull attempted to regain some momentum by promising to reintroduce TPVs if he remained Opposition leader. The resulting backlash from moderate Coalition MPs, when combined with his continued inability to resolve the internal party discord over the ETS, had made a leadership spill all but inevitable (P. Maley & Franklin, 2009b; Narushima, 2009b; Grattan, 2009e).

On November 12, the Sydney Morning Herald published a document that outlined that the passengers on board the Oceanic Viking had received a guarantee from Australian embassy officials in Jakarta that all UNHCR-recognised refugees would be resettled within 4-6 weeks, while asylum seekers whose claims were successful would be resettled within 12 weeks (The letter to the, 2009; P. Maley & Franklin, 2009b). Four days later, the month-long impasse was finally resolved when all of the passengers agreed to disembark the vessel. While Rudd insisted that the group had been “treated in a manner consistent with that afforded to any other asylum seeker [in] Indonesia” (Commonwealth [HoR], 16 November 2009, p.11666), the Coalition declared that the government had given them preferential treatment by “fast-track[ing]” their applications (Commonwealth [HoR], 18 November 2009, p.12069; pp.12067-12068). Significantly, Liberal MPs drew on humanitarian arguments in 120 order to support their claim that the outcome was not “humane, fair or equitable in any way” because it ignored the plight of both the occupants of the Jaya Lestari and refugees languishing in offshore ‘concentration camps’ (Commonwealth [HoR], 23 November 2009, p.12590). Warren Truss argued that “this government [is] not tough and it is not humane…[t]he reality is that this response is not only weak but also cruel and heartless” (Commonwealth [HoR], 17 November 2009, p.11903). While Labor accused the Coalition of “attempting to exploit the issue of vulnerable people for political gain” (Commonwealth [HoR], 23 November 2009, p.12593), Turnbull maintained that the Pacific Solution had managed to balance “the compassionate and fair reception and treatment of refugees [with] the security of our borders…[w]e complied with our international obligations, and our borders were secure” (Commonwealth [HoR], 19 November 2009, p.12272).

The Coalition’s assertion that Rudd had essentially capitulated to the demands of the IMAs on board the Oceanic Viking also appeared to be shared by all three major media outlets. The Australian’s Dennis Shanahan stated that “Kevin Rudd may continue to deny that the Sri Lankans' refusal to leave the Oceanic Viking won them any concessions [but] nobody else seems to be in any doubt” (D. Shanahan, 2009d). Rudd dismissed the outlet’s assertions as the partisan views of a “right-wing newspaper” (Commonwealth [HoR], 18 November 2009, p.12069). However, the fact that similar sentiments were being expressed by the centre-left Age and the Sydney Morning Herald (Wright, 2009b; Crabb, 2009b) led Turnbull to view it as irrefutable evidence that “[t]he Prime Minister’s spin has not been able to fool anyone” (Commonwealth [HoR], 19 November 2009, p.12272; Stewart, 2009). The fact that Rudd’s response to both stand-offs had significantly damaged his political reputation was further affirmed in a Newspoll, which showed that public satisfaction with Rudd’s leadership had dropped from 67 to 56% since early October (Rudd loses on Viking, 2009). As riots broke out between Afghan and Sri Lankan detainees on what was fast becoming a vastly overcrowded Christmas Island, the Age pondered whether Rudd’s legacy would be irreparably tarnished by the perception that he was “a prime minister whose ambition was ultimately not matched by a willingness to make tough decisions” (Grattan, 2009f; Nicholson, 2009).

On December 1, Tony Abbott became the new Opposition leader after narrowly beating Malcolm Turnbull in a leadership spill by 42-41. After dismissing the ETS as a $120 million “energy tax” (cited in Abbott’s task, 2009; Abbott, 2009b; Cassidy, 2010, p.35), Abbott unveiled the Coalition’s new asylum seeker policy. In addition to maintaining good relations with source countries, the ‘four pillars’ of border protection included rigorous offshore processing, reintroducing TPVs and turning back boats “under the right circumstances” (Abbott, 2009a). During this period, the Coalition primarily relied on alarmist rhetoric in order to reinforce the necessity of reintroducing Howard’s 121 hardline policies. In addition to arguing that “Labor’s failure to protect Australia’s borders [is] fast becoming a crisis” (Keenan, 2009), both Abbott and his new Shadow Immigration Minister, Scott Morrison, once again portrayed IMAs as an existential threat by declaring that “there [are] millions of people living within a boat ride of Australia who might come if they think it is an open door policy” (Abbott, 2009a; Abbott, 2009c; Morrison, 2009b; Morrison, 2009c). These assertions were in turn accompanied by hostile and exclusionary rhetoric that referred to IMAs as “illegals” (a term that Turnbull had largely avoided) and the “clients” of people smugglers, categorisations that were aimed at perpetuating the view that many asylum seekers were economic opportunists (Morrison, 2009a).

The Coalition’s revised strategy on asylum seekers was clearly aimed at gaining the support of voters that had grown increasingly frustrated with Rudd’s ongoing inability to stem the flow of boat arrivals. Nevertheless, Abbott also demonstrated that he was willing to use compassion rhetoric in order to neutralise the efficacy of Labor’s humanitarian platform on IMAs. While he was adamant that “[t]elling the world how compassionate you’re going to be just encourages the people smugglers and their potential clients,” he also asserted that “a lot of them are going to suffer terribly on the trip and you’ve got to ask yourself why is that more moral than [not] having them take to sea in leaky boats” (Abbott, 2009b; Austin & Martin, 2009). The claim that Labor’s 2008 policy changes were primarily responsible for encouraging asylum seekers to risk their lives at sea constituted a subtle and yet crucial shift in the Coalition’s rhetoric on boat arrivals. As the next section will demonstrate, the ‘drownings argument’ not only de-legitimised both the moral and practical foundation of Rudd’s ‘hardline and humane’ approach, but also ensured that Abbott’s political message on boat arrivals became more congruent with contemporaneous standards of normative appropriateness.

‘In the light of the changing circumstances…’49

In 2009, a total of 60 boats carrying 2,728 asylum seekers had arrived in Australia’s territory (Narushima, 2010a). However, when more than 100 IMAs arrived in the first week of 2010 alone, they pushed Christmas Island “once more [to] the brink of overflowing” (P. Maley, 2010a) As the Coalition renewed its claims that Australia was facing a “flood of boat arrivals” (Keenan, 2010a; Narushima, 2010b), Rudd continued to face criticism that the crowded conditions and ad hoc accommodation arrangements at the detention facility were manifestly inhumane (P. Maley, 2010a). When it was revealed that detainees were once again facing lengthy detention periods due to processing delays, Australian of the Year Patrick McGorry likened Australia’s mandatory detention facilities to "factories for producing mental illness and mental disorder" (cited in Harrison, 2010).

49 Evans, O’Connor & Smith, 2010. 122

Similarly, the Australian criticised the government for continuing its “farcical policy of processing all boat arrivals on the island in spite of criticisms from the UN High Commissioner for Refugees, the AHRC and Amnesty International.” (Goddard, Briskman & Latham, 2010; P. Maley & P. Taylor, 2010a). These assertions in turn strengthened the prevalent view that Rudd’s approach to asylum seekers was “reeking in hypocrisy” (LeGrand, 2010) as he continued to denigrate Howard’s Pacific Solution whilst allocating $654 million over four years in order to erect regional barriers against asylum seekers (Rudd, 2010a).

The adverse humanitarian consequences of the Rudd’s increasingly inconsistent stance on boat arrivals consequently continued to have a detrimental effect on his leadership. By late January, Rudd’s voter satisfaction rating had fallen to 52% (his second-worst result since the 2007 election), while Abbott’s rating among Coalition voters had risen to 61% (Maiden, 2010a). As Rudd’s offshore detention arrangements continued to be subjected to severe criticism, the Coalition began to appropriate his 2007 election campaign strategy by pointing out that Labor’s policies were both fiscally irresponsible and morally questionable. When it was revealed that the government had allocated an additional $144 million for offshore processing in the May 2010 budget (an increase of 126% from 2009), Morrison asserted that “these costs are now, just like the government’s border protection policies, completely out of control” (Commonwealth [HoR], 3 February 2010, p.332). Morrison’s criticism of Rudd’s prolific spending was in turn bolstered by the failure of a number of other policy initiatives as claims of widespread rorting, cost-blowouts and procedural oversights derailed both Gillard’s Building the Education Revolution program and the Home Insulation Scheme (Dyrenfurth & Bongiorno, 2010, p.192; Holmes & Fernandes, 2012, pp.9-10; Rudd, 2010b; Rudd, 2010c). The Sydney Morning Herald surmised that “[r]arely has a government promised so much, spent so much, said so much, and launched so many nationwide programs, and delivered so little value for money and expectation” (Sheehan, 2010).

By mid-February, approximately 700 IMAs had arrived on Christmas Island since the new year (Rudd, 2010a). The Coalition seized on the numbers in order to reiterate its claim that “the boats are arriving closer [to] our shores while the Government continues to deny there is a serious problem” (Morrison, 2010b; P. Maley, 2010b; Narushima, 2010c). Nevertheless, the Australian noted that its “message on asylum-seekers has become [more] nuanced [by] argu[ing] that true compassion when it comes to boatpeople is to have tough border protection so victims of people-smugglers don't die on the high seas” (G. Milne, 2010a). This rhetorical shift was aptly demonstrated when Morrison seized on a report that 105 people had perished on their way to Australia in October 2009 in order to chastise Rudd for his “moral grandstanding when your own policies put people’s lives at risk by drawing them 123 into decisions which put them on very risky voyages” (Commonwealth [HoR], 3 February 2010, p.335). In an opinion piece for the online news website The Punch, Morrison further opined that “the Rudd Government has no monopoly on concern for the world’s dispossessed…saving lives and helping those who will never be able to pay a people smugglers ransom to come to Australia [are] good reasons to stop the illegal arrival of boats coming to Australia” (Morrison, 2010a).

When the government introduced the Anti People-Smuggling and other Measures Bill 2010 (Cth) into parliament in mid-March, the drownings argument consequently became the central focus of second reading speeches. Coalition MP Nola Marino argued that the bill constituted “the first forced admission [that] their current policy actively encourages people to risk their lives during dangerous sea voyages in unseaworthy boats” (Commonwealth [HoR], 15 March 2010, pp.2484-2485; see also pp.2465-2469). The main refrain among Liberal MPs was that the Coalition’s demands for stronger border protection policies were primarily driven by humanitarian motives (Commonwealth [HoR], 16 March 2010, pp.2638-2641; pp.2677-2679; pp. 2647-2650). Kelly O’Dwyer was particularly critical of Labor’s attempt to maintain the moral high ground when she stated that “[w]hile those opposite ascribe base motives to our strong view [that] it is critical to stop illegal boat arrivals, there is a very simple explanation…[w]e do not like people risking their lives [and] [w]e do not want to outsource our refugee settlement program to people smugglers” (Commonwealth [HoR], 16 March 2010, p.2656). Significantly, the government similarly maintained that the primary purpose of the bill was to reinforce its hardline stance on people smugglers in order to protect vulnerable IMAs from harm. Labor MP Mike Kelly asserted that “[w]hat is perhaps more confronting about the actions of people smugglers is their complete disregard for the value of human life…[t]his bill serves, therefore, to provide a stronger deterrence to [them]” (Commonwealth [HoR], 15 March 2010, p.2471; Commonwealth [HoR], 16 March 2010, pp.2664-2667).

These new measures were in turn accompanied by another shift in rhetoric as Rudd began to draw more readily on the ‘queue jumper’ narrative in order to stave off ongoing criticism over his perceived policy failures on asylum seekers. After announcing that the government had already declined the applications of “hundreds and hundreds” of mainly Sri Lankan IMAs, he declared that “part of our policy is that when we find that a person's not a bona fide refugee, they get sent packing back home” (Rudd, 2010b). Rudd’s increasingly janus-faced stance on boat arrivals in turn provided the scope for the Coalition to amplify its claims that he was primarily responsible for the recent increases in boat arrivals. After a UN Global Trends report found that Sri Lankan asylum claims had gone up by 29% in Australia in 2009 (compared to 4% globally), Morrison declared that “Mr Rudd cannot sustain his spin that boat arrivals in Australia are driven by global push factors” (Morrison, 2010d; Narushima, 124

2010d). When reports emerged that large numbers of IMAs were being transferred to the mainland as Christmas Island officially reached maximum capacity, Morrison further accused Rudd of facilitating the “abolition of universal offshore processing” (Morrison, 2010c). As the hundredth boat since Labor took office arrived on March 30, the Australian opined that “in an election year, the Prime Minister learns that Labor's kinder approach [risks] alienating voters [who] question whether [it] threatens the national consensus on the need for a humanitarian but accountable policy that respects our borders” (P. Coorey & Narushima, 2010a).

In early April, Abbott began his pre-election campaign by ramping up his hardline rhetoric on border protection. After declaring that the government had “effectively abandoned deterrence when it made this public statement to the wider world that it was going to be compassionate” (Abbott, 2010a; Abbott, 2010b), Abbott echoed Howard’s seminal statement on boat arrivals when he stated that “under Mr Rudd we do not decide who comes to our country and the circumstances under which they come” (cited in Wright, 2010; Morrison, 2010f). Nevertheless, the Coalition continued to use humanitarian rhetoric in order to neutralise criticism over its punitive asylum seeker policy. When Morrison was asked how maritime interdiction operations would be conducted, he maintained that they would remain within the scope of “the circumstances [that] have been set out in international law” (Morrison, 2010e). Similarly, when Rudd accused Abbott of conducting a scare campaign that was “100 per cent headline and zero per cent policy” (cited in P. Maley & P. Taylor, 2010b), he retorted that “it’s a pity [and] a tragedy, for many people, including the boat people who’ve drowned at sea, that Mr Rudd hasn’t been as tough post-election as he promised to be pre-election” (Abbott, 2010c). Abbott’s publicly expressed sympathy for IMAs was greeted with great scepticism by refugee advocates and some media outlets. Julian Burnside accused Abbott of being both “heartless and cynical” (Burnside, 2010a), while the Australian’s Peter van Onselen lambasted both leaders for “wear[ing] their religion on their sleeves” while failing to “practis[e] the compassion that Christianity extols when it comes to boatpeople” (Van Onselen, 2010a). However, these developments therefore clearly demonstrate that the Coalition had become increasingly adept at using compassion rhetoric in order to diminish the normative basis of Labor’s asylum seeker policy.

The effectiveness of this strategy was further evidenced when the Rudd Government announced on April 9 that it would immediately suspend the processing of all new applications from asylum seekers from Sri Lanka and Afghanistan “in the light of the changing circumstances” in both countries, subject to review in three and six months respectively (Evans, O’Connor & Smith, 2010; Smith, 2010a). Evans maintained that the government would “ensure [that] we continue to provide protection to those in need in accordance with our international obligation.” However, he also asserted that the 125 revised security assessments would have a “significant effect [on] whether asylum–seekers have a well-founded fear of persecution within the meaning of the Refugees Convention” (Evans, O’Connor & Smith, 2010). Rudd justified these new measures by maintaining that “[o]ur obligations are to deal with genuine asylum seekers, and those who are not genuine seekers, to send them back to their countries of origin” (Rudd, 2010d). Despite countervailing claims by refugee advocates that the DFAT website still listed Sri Lanka as a dangerous destination and that persecution of the Hazara minority in Afghanistan was still prevalent, deputy prime minister Julia Gillard argued that the former was “stabilising through an election process” and that the plight of the latter “could be changing” in some parts of Afghanistan (Gillard, 2010a; Farouque, 2010; P. Maley, 2010c; Hodge, Rintoul & J. Kelly, 2010; Wade & Coorey, 2010).

The announcement was widely derided in both the political and public spheres, albeit for different reasons. The Coalition dismissed the measures as “an election fix” (Abbott & Ciobo, 2010) and a “band aid wait-and-see solution to this crisis” (Keenan, 2010b). The Australian’s Paul Kelly surmised that the move not only constituted “an admission by the Rudd government that its policies have failed,” but also “shatter[ed] the dual message of border vigilance and asylum-seeker humanity projected last year by Rudd” (P. Kelly, 2010a; D. Shanahan, 2010a; Coorey, 2010a). Greens Senator Sarah Hanson-Young lambasted Rudd for “abandon[ing] its promises to provide real reform of Australian asylum-seeker policy” (Hanson-Young, 2010a), while the Age asserted that the measures amounted to “collective punishment of the victims” (Flitton, 2010a; Davis, 2010). Finally, refugee law expert Michelle Foster pointed out that the potentially indefinite detention of specific nationalities potentially violated both Article 3 of the Refugee Convention and Article 9 of the ICCPR (Forster, 2010; McAdam & Kerry Murphy, 2010). The prevailing view that these measures were politically motivated was further affirmed when the UNHCR insisted that the situation in Afghanistan had in fact become “more problematic” (cited in Hodge, Rintoul & J. Kelly, 2010) and that Sri Lanka still had a “long way to go” on the path to political stability (Labor surrenders to phobia, 2010; Hodge, 2010; Minister’s visa claims, 2010). Regional head Richard Towle also refuted Smith’s assertion that a “number of other countries” had taken the same initiative, with Denmark categorically rejecting the claim (D. Shanahan & J. Kelly, 2010; D. Shanahan, 2010b).

When Labor announced on April 18 that Australia’s onshore detention network would be expanded by reopening the Curtin Detention Centre, both the Coalition and the Greens agreed that it was an inappropriate choice due to its remote location and “primitive” facilities (P. Maley & P. Taylor, 2010c; Morrison, 2010g; Hanson-Young, 2010a; Davis, O’Brien & Minus, 2010). This unexpected convergence of opinion between two diametrically opposed political parties not only further 126 demonstrated the Coalition’s ability to adapt its political message to suit contemporaneous standards of normative appropriateness, but also had the effect of further diminishing Rudd’s support base. While an Age/Nielsen Poll revealed that 58% of respondents favoured the suspension of asylum applications (Grattan, 2010b), the growing disillusionment of left-leaning Labor supporters was also demonstrated by the fact that while Labor’s primary vote had fallen by another 3 points to 39%, support for the Greens had risen from 9 to 12% (Coorey, 2010b; D. Shanahan, 2010c; Cassidy, 2010, p.59).

At the same time, the sheer magnitude of Rudd’s perceived failures in other policy areas was also being exposed. In addition to facing ongoing questions over the exorbitant projected expenditure of his hospitals program, Gillard’s announcement that she would employ a $14 million taskforce in order to examine allegations of rorts and price-gouging within the BER program did little to alter the perception that the project had been severely mishandled (Grattan, 2010a). On April 21, it was revealed that Rudd had refused to commit his government to implementing a federal Human Rights Charter, meaning that Australia would continue to be the only Western democracy without a domestic legal framework for protecting human rights (Joseph, 2010; Erdos, 2012). And on April 27, the ETS was shelved until at least 2013 in what the Australian’s Paul Kelly described as “one of the most spectacular backdowns by a prime minister in decades” (P. Kelly, 2010b; L. Taylor, 2010a; Grattan & Arup, 2010). As Rudd’s carefully cultivated political persona as a socially progressive norm promoter was being challenged on multiple fronts, Dennis Shanahan surmised that the main question now facing him was “how many expectations he can disappoint without suffering terminal political damage” (D. Shanahan, 2010d; Carney, 2010a).

In early May, speculation was running rife that Rudd’s leadership was in serious jeopardy. A Newspoll revealed that Labor’s two-party preferred vote had fallen below 50% for the first time in four years, while Rudd’s personal approval ratings had fallen to 45% (Van Onselen, 2010b; Dusevic, Rintoul & Akerman, 2010; Hartcher, 2010a; L. Taylor, 2010b). The sharp drop in numbers was largely attributable to the negative response to the government’s Resource Super Profits Tax, but it was clear that the asylum seeker issue had also played a key role in diminishing Rudd’s popularity (Holmes & Fernandes, 2012, p.12; Coorey, 2010c). In order to capitalise on the growing public resentment, the Coalition intensified its strategy of blaming asylum seeker deaths at sea on Labor’s policy changes. When five IMAs died after leaving their distressed vessel near the Cocos Islands in order to seek help on May 10, Morrison argued that “[t]here is nothing humane about policies that influence a person’s decision to risk their life on a boat to illegally enter Australia” (Morrison, 2010h; Abbott, 2010d). Ongoing concerns over Rudd’s prolific spending were also compounded when it was 127 revealed in the 2010 Budget that costs to maintain and run the detention centres were expected to exceed $1 billion over four years (Narushima, 2010e; Hockey, 2010a). Shadow Treasurer Joe Hockey derided the added expenditure as a direct “reflection on their poor border protection policies” (Hockey, 2010b), while the Greens criticised the fact that the government was spending “even more money to the black hole that is Christmas Island - continuing to fund a regime that is not only inhumane, but ridiculously expensive” (Hanson-Young, 2010b).

As rumours swirled in early June that Rudd was facing a potential leadership challenge, the Australian declared that the Coalition had gained the upper hand in the asylum seeker debate because it “understands the politics of boatpeople” (Politics of channelling, 2010). Rudd’s declaration that he would not “engage in some sort of race to the bottom” on the issue (Rudd, W. Swan & Ferguson, 2010) was consequently perceived as a last-ditch attempt to stem the defections of progressive Labor supporters to the Greens (Karvelas, 2010a; Tomazin, 2010). Labor’s growing fears of a looming election defeat were seemingly confirmed when an Age/Nielsen Poll indicated that the Coalition was ahead of Labor for the first time in more than four years, leading on a two-party-preferred basis by 53% to 47% (Holmes & Fernandes, 2012, p.12; Fear trumps truth, 2010). Despite suffering a record 25.5% swing against Labor in the crucial Western Sydney seat of Penrith during the June 21 by- election (G. Milne, 2010b; Nicholls, Coorey & Hall, 2010), Rudd remained adamant that his government would “not be lurching to the right on the question of asylum seekers, as some have counselled us to do” (cited in Rudd stands on his, 2010). Nevertheless, Rudd was formally deposed as Prime Minister by Gillard on June 24 in what many viewed as the inevitable consequence of Rudd’s failure to fulfil his election promises on a range of issues, including asylum seekers (P. Kelly, 2014, p.176; Neilson, 2010, p.125; McPhail, Nyamori & S. Taylor, 2016, p.18).

The overall conclusion that can be drawn from this analysis of Australia’s asylum seeker policy between 2007 and 2010 is that the question of why Labor’s humanitarian platform on IMAs was unable to be sustained can only be answered by taking equal account of the agents, structures and contexts that comprise the norm contestation process. First, I showed that Australia’s normative shift on IMAs in 2007 was driven by a confluence of interrelated factors, including (1) Rudd’s publicly stated Christian impulse to help the “vulnerable stranger”; (2) his broader policy objective of presenting himself as a socially progressive norm promoter by increasing Australia compliance with international asylum seeker norms; and (3) increased public dissatisfaction with the adverse humanitarian consequences of the Howard government’s Pacific Solution. These factors in turn created a more amenable socio-political environment within which Rudd could successfully challenge the normative status quo on asylum seekers. 128

Then, I demonstrated that while the increased volume of IMAs towards the end of 2009 once again fueled domestic concerns that Australia was facing a new wave of boat arrivals, the demise of Rudd’s compassion for the ‘vulnerable stranger’ was similarly attributable to structural, contextual and agent- driven factors. During his first year in office, Rudd’s reframed binary between ‘criminal’ people smugglers and ‘vulnerable’ asylum seekers had enabled him to legitimate the government’s (partial) dismantling of the Pacific Solution in 2008. However, the validity of his claim that Labor’s asylum seeker policy was more humane than the Coalition’s was significantly tarnished when he increasingly drew on hardline rhetoric in the wake of the Jaya Lestari 5 and Oceanic Viking stand-offs. The growing perception that Rudd had failed to maintain his election promise to protect Australia’s sovereign borders while treating IMAs with compassion enabled the Coalition to characterise him as a moral hypocrite whose policies had actively encouraged desperate people to risk their lives by making the perilous journey to Australia by boat.

Conclusion

In his election victory speech in November 2007, Kevin Rudd made a promise to the Australian people that he would “write a new page in our nation’s history to make this great country of ours [even] greater” (Rudd, 2007e). He arguably achieved his first aim by successfully engendering a normative shift that saw Australia (briefly) increase its compliance within international asylum seeker norms during the 2007 Federal Election campaign. While Rudd’s compassion rhetoric was ultimately short-lived, Chapter 5 will demonstrate that his rearticulation of the domestic meaning-in-use of international asylum seeker norms continued to have significant implications for how the issue would be contested during the prime ministership of his successor Julia Gillard. In addition to becoming an increasingly central component of the asylum seeker debate, the normalisation of the ‘drownings argument’ in both the political and public spheres paved the way for the gradual reintroduction of the Pacific Solution on the proviso that it was necessary in order to ‘save lives.’

129

Chapter 5

For those in Peril on the Sea:

Australia’s Asylum Seeker Policy under the Gillard Government (2010 – 2013)

Introduction

When Julia Gillard became Australia’s 27th Prime Minister on June 24, 2010, she faced a very different socio-political environment to the one that had facilitated the Labor Party’s emphatic win in 2007 (Dyrenfurth & Bongiorno, 2010, pp.192-193). In order to overcome the legitimacy deficit that had been created by Rudd’s numerous policy failures and the public perception that she had seized the leadership from him (Masters & Uhr, 2017, p.50; Holmes & Fernandes, 2012, p.13), Gillard promised to resolve Labor’s policy quagmires on climate change, the mining tax and IMAs. However, as this chapter will demonstrate, her attempt to reframe the asylum seeker debate by seeking a ‘regional solution’ to boat arrivals engendered another normative shift that transformed the drownings argument from a rhetorical strategy into the primary justification for the reintroduction of the Pacific Solution.

During her first year in office, Gillard attempted to distance herself from Rudd’s compassion rhetoric by calling for a “frank, open [and] honest” discussion on the asylum seeker issue (Gillard, 2010e). While she retained his rearticulated binary between ‘vulnerable’ IMAs and ‘criminal’ people smugglers, her focus on alleviating public concerns over boat arrivals further diminished the efficacy of Labor’s humanitarian platform on asylum seekers. After failing to secure an agreement with East Timor to establish a regional processing centre and facing public accusations that Labor had ‘blood on its hands’ in the wake of the Christmas Island disaster (Bolt, 2010a), Gillard vowed that she would “smash the people smuggling business model” by entering into a ‘people swap’ arrangement with Malaysia (Gillard, W. Swan, Conroy & Wong, 2010). When the High Court declared that the ‘Malaysia Solution’ was invalid because it was not a signatory to the Refugee Convention, the Coalition enhanced its strategy of claiming that Labor’s asylum seeker policies were both ineffective and inhumane. The government’s support base was consequently further diminished when these 130 views were increasingly shared by both the Greens and a number of high-profile refugee advocates (Franklin, Vasek, J. Kelly & Massola, 2011; Manne, 2015; McDonough & Pringle, 2014, p.92; Mulligan, 2010, p.14).

As the number of boat arrivals (and deaths at sea) steadily rose in the first half of 2012, the Coalition intensified its campaign to have the ‘compassionate’ Pacific Solution reinstated while continuing to reject offshore processing in Malaysia on humanitarian grounds. When Gillard’s attempt to break the political impasse failed, she commissioned a Panel of Experts whose primary mandate was “to prevent asylum seekers risking their lives on dangerous boat journeys to Australia” (Australian Government, 2012, p.9). Despite recommending that Australia’s humanitarian intake should be increased to 20,000 places, the Houston Report also called for the reintroduction of offshore processing in Nauru and Papua New Guinea (S. Davies, 2013, p.27). The report constituted the culmination of a process of normative realignment that had seen Labor gradually discard its humanitarian stance on IMAs due to a combination of agent-driven, structural and contextual factors. By transforming the ‘drownings argument’ from a moral imperative to save the ‘vulnerable stranger’ into a positive duty to deter them from reaching Australia’s shores, it not only legitimised the government’s repudiation of its long-standing opposition to the Pacific Solution (Grattan, 2012a; Carney, 2012), but also vindicated the Coalition’s claim that stronger border protection policies were necessary in order to ‘save lives.’ In the process, it paved the way for the re-emergence of a bipartisan consensus that hardline policies were both practically necessary and morally justified (Grewcock, 2014, pp.72-73; Manne, 2013, pp.24-25; Peterie, 2017, p.359).

I. The Road to the 2010 Federal Election

During her first press conference as Prime Minister, Gillard carefully outlined the parameters that would define her leadership style. After declaring that Labor had “los[t] its way,” she made a commitment to the Australian people that she would “lead a strong and responsible Government that will take control of our future” (Gillard & W. Swan, 2010a). These assurances were emblematic of Gillard’s pragmatic approach to political problem-solving as she remained adamant that Rudd’s removal was “in the best interests of the nation, [the] Government [and] the people” (Gillard, 2010b; Cooney, 2015, p.22), Nevertheless, these statements did little to quell the perception that Rudd had been “taken out by the power-hungry faceless men” who had wanted him to take a more decisive stance on climate change and asylum seekers (Oakeshott, 2010a; Hartcher, 2010b; Gordon, 2010b). As the government faced the very real possibility of either losing the 2010 Federal Election outright or ending up with a hung parliament (Colebatch, 2010), Gillard immediately set about addressing the 131 three policy areas that had contributed to Rudd’s demise: the mining tax, the ETS, and asylum seekers (Gillard, 2014, 30-31).

From the outset, Gillard demonstrated that she intended to distance herself from the altruistic appeals to faith and moral conscience that had characterised Rudd’s normative position on asylum seekers in 2007. After asserting that she was “full of understanding” that Australians had a “sense of anxiety” about IMAs, Gillard stated that “[t]his country is a sanctuary [and] our home…the Australian people [want] strong management of our borders and I will provide it” (Gillard & W. Swan, 2010a; Gillard, 2010c). Peterie (2017, p.358) points out that while Gillard retained Labor’s ‘hardline and humane’ mantra, her policies were more specifically targeted at “us[ing] the figure of the people-smuggler to reconcile Australia’s preferred moral identity with her government’s commitment to stopping IMA boats” (Peterie, 2017, p.358). Therefore, her statements on asylum seekers in the leadup to the 2010 Federal Election were, according to Matt McDonald, (2011, p.291), primarily aimed at reinforcing the notion that their presence was both unwelcome and potentially threatening. Gillard’s claim that she was “very critical of political strategies t[hat] try to mount those anxieties for political profit” (Gillard, 2010e; Maley, 2010d; Narushima, 2010g) was consequently qualified by Immigration Minister Brendan O’Connor’s promise that the government would “[d]edicate more resources than any other” towards strengthening Australia’s borders in order to “disrupt people smuggling syndicates that seek to lure people onto dangerous vessels” (O’Connor, 2010a; Smith, 2010b).

In the wake of the leadership spill, both the Greens and refugee advocates were largely sceptical of Gillard’s claim that she would “absolutely rule out lurching anywhere” on asylum seekers (Gillard, 2010e; Narushima, 2010f). When she asserted that Australians “should feel free to say [that] they're anxious about border security” (Gillard & Brumby, 2010), Greens Senator Sarah Hanson-Young accused her of fuelling “public misconceptions [about] Australia's obligations to act humanely towards asylum seekers” (Hanson-Young, 2010c; Needham, 2010a; Grattan, 2010d). In contrast, the Coalition was largely dismissive of Gillard’s promotion and maintained that “there is no evidence whatsoever that [she] will have any new policies [to] stop the boats” (Abbott, 2010e; Morrison, 2010i; Commonwealth [HoR], 24 June 2010, pp.6614-6615). When the government once again found itself in an election-winning lead of 53 to 47% on a two-party preferred basis (New PM restores, 2010), Abbott broadened his strategy of drawing parallels between Rudd’s dismantling of the Pacific Solution and recent increases in IMAs by claiming that Gillard had been the “the architect [of] Labor’s border protection policy” (Abbott & Bishop, 2010; Abbott, 2010f). Nevertheless, both parties also continued to use humanitarian arguments in order to criticise their opponent’s policies during this period. Morrison argued that the freeze on Afghan and Sri Lankan asylum claims, which was due to 132 be reviewed on July 9, was “as ineffective as it is inhumane” (P. Maley, 2010e, W. Maley, 2010), while Gillard pointed to the ethical implications of the Coalition’s boat turnback policy in order to support her claim that Abbott “intends to leave people to drown at sea” (Gillard, 2010d).

These competing arguments in turn created a policy dilemma for Gillard as she found herself under significant pressure to formulate a policy that would protect Australia’s borders from people smuggling syndicates while treating asylum seekers with compassion. Chapter 4 demonstrated that Rudd’s inability to legitimate his ‘hardline and humane’ approach was not only due to the countervailing effect of structural, ideational and institutional barriers, but also to the fact that he had failed to keep his political message on IMAs within the rearticulated normative parameters that he had established in 2007. Despite the growing public reticence over the new boat arrivals, the domestic backlash over Rudd’s increased use of hardline rhetoric in order to denigrate both people smugglers and ‘illegal immigration’ clearly demonstrated that Labor’s asylum seeker policy still needed to be framed in humanitarian terms. The Australian encapsulated this challenge when it stated that “[m]anaging the anger over boatpeople will test Ms Gillard, who must attempt to deter the flow while nurturing the national consensus for a humanitarian approach” (Memo to the leader, 2010; Grattan, 2010c). However, the next section will demonstrate that Gillard’s eagerness to get Labor “back on track” on the issue also provided the catalyst for her first major policy failure: the ‘Timor Solution’ (Gillard & Brumby, 2010).

The ‘Timor Solution’

On July 6, Gillard unveiled Labor’s reformulated asylum seeker policy. After calling for a “frank, open, honest national conversation” on the issue, she argued that it was possible to formulate a policy response that was both “hard-headed [and] open-hearted” by striking a workable balance between political pragmatism and humanitarian concern (Gillard, 2010e). Despite being almost identical to Rudd’s ‘hardline and humane’ mantra, she differentiated her position by maintaining that her primary policy goal was to develop “an effective, sustainable, long-term solution [to] stop the boats [before] they even leave” (Gillard, 2010e). It was within this context that Gillard announced that she had “discussed [the] possibility” of establishing a processing centre in East Timor with President José Ramos-Horta as part of her broader commitment to develop a “regional solution to the processing of asylum seekers [to] ensure that people smugglers have no product to sell” (Gillard, 2010e). In addition, Gillard announced that while the government would lift the suspension on processing Sri Lankan claims, the Afghan freeze would remain in place as refusal rates were expected to increase exponentially (Gillard, 2010e; P. Maley, 2010f). 133

Despite Gillard’s insistence that she was “not interested in pursuing a new Pacific Solution” (Gillard, 2010e), the so-called ‘Timor Solution’ was swiftly condemned by both the Greens and the Coalition, albeit for different reasons. Hanson-Young argued that Gillard was “backing a return to Howard's Australia” (Hanson-Young, 2010d), while Abbott dismissed it as a “political fix for the election [that] [t]he East Timorese won’t accept” (Abbott, 2010g; Morrison, 2010j; Bishop, 2010a). The policy garnered a more mixed response from refugee advocates and the media as they debated the question of whether the policy was commensurate with Australia’s international obligations. RCA president John Gibson was cautiously optimistic that Refugee Convention signatory East Timor would protect the human rights of detainees. In contrast, the RAC’s Ian Rintoul admonished Gillard for “looking to another poor neighbour to outsource refugee processing” (cited in Needham, 2010b; Flitton, 2010b; Berkovic, 2010). However, while the three major media outlets were similarly conflicted over the relative merits of reintroducing offshore processing, they agreed that Gillard had “no option but to change her predecessor's policy [in] the interests of those who will otherwise put their lives at peril” (Putting policy first, 2010; Saul, 2010; Sheridan, 2010b; A solution with merits, 2010; Policy must not lose, 2010; Albrechtsen, 2010a).

In the days following the announcement, the government maintained its position that the Timor Solution would enable Australia “to do the right thing” (O’Connor, 2010b) because there is “nothing humane about standing back and having people [risk] their lives at sea” (Gillard, 2010f). However, Gillard’s plans suffered a setback when it was revealed that no formal agreement had been reached with the East Timorese government and that Gillard had failed to consult Prime Minister Xanana Gusmao on the matter (Gillard & Burke, 2010). Despite Ramos-Horta’s public indication that he remained “sympathetic to the idea” (H. McDonald, 2010; Minus, 2010), Fretilin parliamentarian Jose Teixera was adamant that “to go down this path would not be a good way to comply with our international obligations” (Fitzpatrick, Cleary & P. Maley, 2010; Allard & Coorey, 2010). Gillard’s subsequent attempt to distance herself from the negative backlash by declaring that there was “no quick fix” to resolving the issue (Gillard, 2010g; Franklin & Callick, 2010) once again led all three major media outlets to agree that she had “displayed a stunning ignorance for East Timor's political system” (Van Onselen, 2010c) and was now “paying the penalty for an idea that had clearly been announced prematurely” (Gillard muddies the waters, 2010; Powell, 2010; L. Taylor, 2010c; Allard, 2010). When East Timor’s parliament rejected the proposal on July 12, Morrison called on the government to “admit that their suggestion for a regional processing centre is nothing more than a cheap election fix” (Morrison, 2010k; Maley & Fitzpatrick, 2010; Abbott, 2010h). 134

Gillard’s inability to implement the ‘Timor Solution’ significantly tarnished her political standing at a time when her legitimacy as Prime Minister was still in dispute. An Age/Nielsen poll in mid-July showed that while Gillard still held a decisive 56-35% lead over Abbott as preferred prime minister, the government’s primary vote had fallen from 47% to 39% (Grattan, 2010e). The ongoing political fallout from Gillard’s first major policy failure in turn ensured that the asylum seeker issue became a central feature of the 2010 Federal Election campaign, which was due to be held on August 21 (Masters & Uhr, 2017, p.50; Metherell, Cubby, Sharp, Harrison & Needham, 2010). In order to support its claim that the flow of boat arrivals would only be stemmed by reintroducing the Pacific Solution, the Coalition maintained that a regional solution would have to be predicated on reopening the detention centre on Nauru, reintroducing TPVs, and embracing boat turnbacks (Karvelas, 2010b; Gordon, 2010c). In contrast, Gillard remained adamant that the Timor Solution constituted the most appropriate option because Nauru was not a signatory to the Refugee Convention (Gillard, 2010i; Gillard, 2010j).

Throughout the election campaign, both leaders demonstrated a preference for imposing impersonal and transactional language that emphasised the need to prevent “people smugglers [from] hav[ing] a product to sell” (Gillard, 2010h Gillard, 2010k; Abbott, 2010i). Just as it had opted to do during the 2001 Federal Election, the Coalition primarily drew on combative language that characterised boat arrivals at potential threats in order to support its claim that it would “take back control of Australia’s borders [by] stopping the boats” (Abbott, 2010j). Nevertheless, both leaders also maintained that one of their primary policy goals was to protect asylum seekers from harm. After dismissing the government’s objections to Nauru, Abbott argued that “the compassionate thing to do is to stop the boats [because] people smugglers are putting understandably desperate people at risk of death on the open sea” (Abbott, 2010k; Abbott, Bishop & Morrison, 2010). Gillard similarly drew on compassion rhetoric when she stated that “I wish every nation on earth was a signatory [because] I don’t want to [see] desperate people risking their lives” (Gillard, 2010j). Nevertheless, it was the Coalition’s hardline ‘Stop the Boats’ campaign that appeared to resonate most with voters in the leadup to the election despite the prevalent view among refugee advocates that both major parties were equally “committed to the exile of boat arrivals and off-shore processing” (Narushima, 2010h; Stott Despoja, 2010a). In early August, a Newspoll showed that only 32% of respondents approved of the government’s handling of the issue, compared to the Coalition’s 48% (D. Shanahan, 2010e).

These numbers suggest that the Coalition’s hardline message on IMAs was more successful because it was representative of the now widespread public dissatisfaction with Labor’s (partial) dismantling of the Pacific Solution. However, the 2010 Federal Election result and its aftermath also demonstrates 135 that neither party had managed to legitimate their respective asylum seeker policies to a domestic audience during this time. Gillard’s mission to implement a ‘regional solution’ to boat arrivals had drawn the ire of both refugee advocates who decried her attempt to outsource Australia’s international obligations to an ill-equipped regional neighbour, and political commentators who highlighted her political naivete and purported inability to grasp the complexities of the asylum seeker problem. Yet it is equally apparent that the Coalition’s strategy of capitalising on existing domestic anxieties over IMAs by invoking exclusionary asylum seeker narratives had similarly failed to garner the electoral gains that had paved the way for Howard’s electoral comeback in 2001. Once again, a key explanation for their combined failure to gain the ascendancy in the asylum seeker debate is that neither leader had fully taken into account contemporaneous standards of normative appropriateness by advancing a solution that would deter IMAs while ensuring that their rights under international law would be protected. As the next section will demonstrate, the subsequent defection of voters to the Greens and Independent MPs engendered a fundamental shift in Australia’s political landscape that would have significant implications for how the asylum seeker issue would be contested over the next three years (Green around the Gillard, 2010; Legge, 2010).

II. The Gillard Government (2010 – 2013)

The 2010 Federal Election produced a cliffhanger as Labor won 72 seats and the Coalition won 73 in the 150-seat House of Representatives, leaving neither party with the required numbers to form government (Dyrenfurth & Bongiorno, 2010, p.196). As a result, both Gillard and Abbott were forced to negotiate their respective claims to the leadership with four Independent MPs (Rob Oakeshott, Andrew Wilkie, Tony Windsor and Bob Katter) and Adam Bandt, who had won the seat of Melbourne for the Greens. Significantly, the Age surmised that this unexpected turn of events was at least partially attributable to the exodus of “disillusioned, left-leaning voters [who] support [a] more compassionate approach to asylum seekers” (Topsfield, 2010). Both leaders were consequently faced with having to make their policies more palatable for the “kingmakers” who would decide their fate (Oakeshott, 2010b). Further complicating matters was that both the Greens (who had secured a majority in the Senate with nine seats) and majority of the Independents (excluding Katter) had made public statements to the effect that they “want[ed] to see a more compassionate treatment of asylum seekers” (cited in Stott Despoja, 2010b; Coorey, 2010d).

A House Divided

In the weeks following the election, both Gillard and Abbott continued to appeal to both the Greens and the Independents for the opportunity to form government (Grattan, 2010f; Gillard, 2014, pp.64- 136

70). However, when the number of IMAs since the beginning of the year reached 4168 in early September, Morrison once again warned that “[t]he tsunami of boats hasn’t come to an end – it’s only just begun” (Morrison, 2010l; Madden, 2010). The Coalition’s alarmist language in turn prompted the Greens to reiterate its steadfast opposition to reintroducing TPVs, while Wilkie asserted that the Coalition’s asylum seeker policy was “even less ethical” than Labor's (Narushima & P. Maley, 2010; Franklin, 2010; (P. Maley, 2010g; Nader & Grattan, 2010). In a decision that was primarily informed by their subsequent reluctance to support the Coalition’s inflexible approach on a range of issues (including boat arrivals and climate change), Gillard was able to form a minority government on September 7 after securing the support of the Greens and all Independents (aside from Katter) (It’s a long way, 2010; Curtin, 2015, p.194). Chris Bowen became the new Immigration Minister, while Rudd was given the Foreign Affairs portfolio (Callick, 2010; Credible team chosen, 2010). Gillard downplayed the existence of any residual acrimony between her and Rudd by stating that her government remained committed to “pressing for a regional framework [because it’s] the right thing to do under the auspices of the UNHCR [and] from a humanitarian perspective” (Gillard, 2010l; Diplomat Rudd, 2010; Rudd, 2010e).

The Labor/Greens alliance engendered a cautious optimism among refugee advocates that it would compel the former to once again adopt a more humane stance on asylum seekers. However, these hopes were quickly diminished when Bowen announced on September 18 that he would increase Australia’s onshore detention network by expanding the Curtin detention centre and converting the Sherger Airforce base (Bowen, 2010a). The announcement prompted the Greens to accuse the government of attempting to keep vulnerable asylum seekers out of sight in "inappropriate desert prisons” (cited in Topsfield & Narushima, 2010). Significantly, the Coalition joined the chorus of criticism over the adverse humanitarian consequences of the move by portraying it as the inevitable consequence of Labor’s ‘discriminatory’ freeze on Afghan applications, as Morrison pointed out that Australia’s detention population had increased by 73% to 1,954 since April 2010 (Morrison, 2010m; Morrison, 2010n; Wilson, Koch & Rubin, 2010). The government also came under fire for keeping 742 children in Immigration detention as reports emerged that self-harm rates at detention centres had quadrupled during the previous 12 months (Hanson-Young, 2010f; Hanson-Young, 2010e; Maiden, 2010b; Narushima, 2010i). When Bowen announced on October 18 that children and vulnerable families would be released into the community in order to balance its mandatory detention policy “with the humane treatment of those fleeing persecution” (Bowen, 2010b), the decision was welcomed by refugee advocates (Hanson-Young, 2010g; Unitingcare Australia, 2010; Vasek, 2010a; Hartcher, 2010c). Once again, the Coalition’s objection that community detention would “sen[d] a signal that the welcome mat is out for people smugglers and their customers” (Abbott, 2010l) was 137 accompanied by the humanitarian refrain that “lives are lost because [of the] inability of this government to do something” (Commonwealth [HoR], 19 October 2010, p.715; pp.707-709).

By early November, the total number of boat arrivals since the beginning of the year had reached 5547, exceeding the previous record of 5516 in 2001 (P. Taylor, Perpitch & Guest, 2010). As Christmas Island and most of the onshore detention centres reached capacity (Vasek, 2010b), Gillard’s inability to find a durable policy solution on boat arrivals came under increased public scrutiny. The Sydney Morning Herald declared that she “needs to demonstrate soon that she can [get] something done” (L. Taylor, 2010d), while the Australian argued that her handling of key policy issues had been “nothing short of disastrous.” (R. Fitzgerald, 2010). On November 11, Gillard’s difficulties were further compounded when the High Court handed down its verdict in the case of Plaintiff M61/2010E v Commonwealth. The case concerned two rejected Sri Lankan asylum seekers (M61 and M69) who had challenged the constitutional validity of their failed refugee claims.50 In a unanimous judgment, the court held that the officials that had processed their claims on Christmas Island had made an error of law by failing to take Australia’s international obligations to refugees under the Migration Act into account when formulating their assessments. After determining that the Refugee Status Assessment (RSA) was statutory, the court argued that the plaintiffs had been denied procedural fairness (at [27], [37-39], [70] & [89]; Stewart-Weeks, 2010, p.836).

Gillard remained adamant that the RSA process complied with Australia’s international obligations by enabling the government to “[open] our hearts to people in real need” (Gillard & W. Swan, 2010b). Nevertheless, the decision further eroded her already tenuous political credibility on the issue by vindicating the claims of her opponents that Labor’s asylum seeker policy was both impractical and inhumane. Refugee advocates lauded it as a landmark victory (Marr, 2010b; Burnside, 2010b) while the Coalition argued that it demonstrated that “Labor has not only lost control of our borders [but also] their own processes” (Morrison, 2010o; Bishop, 2010b; If this is a victory, 2010). When Bowen announced that the government would examine potential legislative avenues in order to tighten the review process, the Greens declared that they would “oppose any attempt to overturn or undermine the High Court's decision” (Narushima & Grattan, 2010). At the same time, the Abbott vowed that he would block any legislation that failed to include offshore processing on Nauru (P. Maley, 2010h). The Coalition’s renewed proclivity for using humanitarian arguments in order to justify its hardline policies was put on further display in late November, when Morrison argued that the Refugee Convention’s “misguided and increasing focus on resettlement [plays] into the hands of people smugglers” while actively discriminating against “those without the resources, strength or flexibility

50 Plaintiff M61/2010E v Commonwealth (2010) 272 ALR 14. 138 to make the journey [by boat]” (Morrison, 2010q; Morrison, 2010p). Morrison’s assertions were in turn praised by political commentator Paul Kelly, who praised him for “want[ing] a new international debate to reinterpret the convention's meaning” (P. Kelly, 2010c, Bagaric, 2010).

After six months in office, Gillard’s attempt to implement an asylum seeker policy that was both “hard-headed [and] open-hearted” (Gillard, 2010e) had remained distinctly out of reach as the volume of boat arrivals continued to increase. However, the key finding that emerges from the 2010 Federal Election is that while Abbott’s hardline ‘Stop the Boats’ campaign had resonated with some sections of the public, it not only failed to gain the support of a critical mass of voters, but also became less effective when the composition of Australia’s political apparatus began to change. In order to neutralise the effectiveness of the Labor/Greens alliance, the Coalition began to place a renewed emphasis on using humanitarian arguments in order to demonstrate that Gillard’s policies were both ineffective and inhumane. As the next section will demonstrate, this strategic shift enabled it to further diminish the normative foundation of Labor’s asylum seeker policy when an unanticipated maritime disaster highlighted the growing problem of asylum seeker deaths at sea.

The Christmas Island Disaster

In the early hours of December 15, a boat carrying approximately 90 asylum seekers sank off the coast of Christmas Island. While 42 were eventually rescued, an estimated 48 people perished as the vessel (known as SIEV 221) disintegrated in poor weather conditions after being repeatedly smashed against nearby cliffs (Gillard, 2010m). The tragedy prompted a widespread outpouring of sympathy from both centre-left and conservative politicians as traumatised residents recounted the horror of witnessing dozens of men, women and children drown in front of them (O’Connor, 2010d; Hanson- Young, 2010h; Gillard, 2010n; Abbott, 2010m; Needham & Stevenson, 2010; Perpitch, Barrass & Guest, 2010). However, when the sheer scale of the disaster was revealed, the Australian surmised that it “will have a political impact [and] in every sense the Labor government can expect to pay that cost” (D. Shanahan, 2010f). The truth of this assessment immediately became apparent when the government came under sustained criticism over its failure to detect the vessel before it reached the Australian mainland (Akerman, 2010; Allard & Needham, 2010; O’Connor, 2010c). The Herald Sun’s conservative political commentator, Andrew Bolt, was particularly scathing when he accused the government of having “blood on its hands [and] luring people to their deaths” and declared that “[t]he bodies in the sea are the verdict on Gillard's [policies]” (Bolt, 2010a). When Greens leader Bob Brown angrily rejected the claims, (Spare us this disgusting, 2010), Bolt accused him of having “a guilty conscience [after] being confronted by the deadly consequences of the weaker boat people policies [he] loudly supported” (Bolt, 2010b). 139

Just as Rudd had done in the wake of the SIEV 36 incident and Jaya Lestari 5 and Oceanic Viking stand-offs, Gillard placed the blame for the tragedy firmly on “[t]he people smugglers [who] seek to profit on human misery with callous disregard to human life” and vowed to continue pursuing a regional solution in order to prevent similar tragedies from occurring in the future (Gillard, 2010n; Gillard, W. Swan, Conroy & Wong, 2010). Abbott, on the other hand, offered a more measured version of Bolt’s assessment when he stated that the tragedy served as a stark reminder that “we’ve got to work towards policies that will actually stop the boats” (Abbott, 2010m; Abbott, 2010n).The three major media outlets were similarly divided on the question of how similar tragedies could be prevented in the future. Both the Sydney Morning Herald and the Age argued that a reduction in maritime tragedies was predicated on increasing Australia’s refugee intake rather than reintroducing offshore processing (Acting on principle, 2010; It’s time to stop, 2010). Conversely, the Australian maintained that “[w]hat critics of the Pacific Solution refuse to accept is that it saved lives” (Labor must not fall, 2010; Saving lives is the, 2010; Albrechtsen, 2010b). Despite these variations in opinion, they largely agreed that “[m]uch of the government's problems [stem] from poor policy formulation and bad process” (Shanahan, 2010g; P. Kelly, 2010d; Carney, 2010b; Sheehan, 2010).

By the end of 2010, a total of 6,555 IMAs had arrived in Australia’s territory (J. Phillips & Spinks, 2013b, p.23). These figures, when combined with Gillard’s failed Timor Solution and the Christmas Island disaster, exponentially increased the pressure on the government to formulate a policy that would “dissuad[e] people from risking [their] lives” (Maiden, 2010c). As reports of riots, hunger- strikes, self-mutilation and suicide attempts continued to emerge from Australia’s overstretched detention centres (Iraqi sews lips, 2011; P. Taylor, 2011; Narushima, 2011a), the Commonwealth Ombudsman released its report into the Christmas Island facility. After identifying a litany of shortcomings regarding the accommodation and processing of IMAs, it concluded that “the stage has been reached where the current scale of operations [is] not sustainable” (Commonwealth Ombudsman, 2011, p.2; Vasek & Taylor, 2011). The Coalition capitalised on the findings by stating that the situation “will only get worse with dreadful humanitarian consequences [until] the problem is stopped at the source” (cited in Narushima, 2011b), it also came under fire when Morrison criticised the government for using taxpayer funds to transport the relatives of victims of the Christmas Island disaster to Sydney in order to attend their funerals. The resulting backlash from numerous political commentators and senior Coalition MPs (Vasek & Franklin, 2011; Coorey & Needham, 2011; Van Onselen, 2011; Grattan, 2011a) prompted Abbott to adopt a more conciliatory tone by stating that while “[t]he Coalition will always have a tough border protection policy [we] will never depart from being humane” (Abbott, Mirabella & Abetz, 2011). 140

In early March, the government continued to face criticism over its immigration detention policies as DIAC figures showed that a record 1,065 children were now being held in immigration detention (G. Williams, 2011), while 900 IMAs whose claims had been successful had not been released due to lengthy delays in ASIO security assessments (Skelton, 2011a; Sheridan, 2011a). When 200 detainees escaped from the Christmas Island facility and launched violent protests against their lengthy detention (Taylor & Dodd, 2011; Flitton, 2011a), Hanson-Young argued that it “underscore[d] the terrible problems with the Government’s mandatory detention policy” (Hanson-Young, 2011a; Skelton, 2011b). In keeping with his revised strategy of drawing more heavily on compassion rhetoric in order to highlight the adverse humanitarian consequences of Labor’s policies, Abbott reiterated that “[a]s long as the boats keep coming we will have tragedies at sea, [more] detention centres and [more] unhappy people” (Abbott, Mirabella & Gash, 2011; Commonwealth [HoR], 23 March 2011, pp.2946-2948). In addition, the Coalition maintained that the government was failing to honour its international obligations to refugees by assigning resettlement places to IMAs. During his second reading speech for the Combating the Financing of People Smuggling and Other Measures Bill 2011 (Cth), Keenan stated that “the denial of humanitarian visas to thousands waiting offshore [is] a moral burden that Labor must now carry,” a view that was also shared by Ruddock and Morrison (Commonwealth [HoR], 22 March 2011, p.2787; see also pp.2814-2816; 2818-2820).

Two weeks later, the Coalition’s position that Labor’s policy changes were directly responsible for the rising number of IMAs received support from an unexpected quarter. During an episode of the ABC’s Q and A program, prominent academic and refugee advocate Robert Manne (a vehement opponent of Howard’s Pacific Solution), told fellow panellist Rudd that it “was a mistake to believe that if you humanised the policy you wouldn't have a return of the boats” (cited in Rudd, 2011; Karvelas, 2011). Manne’s reluctant admission marked the beginning of another significant shift in the asylum seeker debate as the ideological gap between proponents of stronger border protection policies and refugee advocates became increasingly narrow (Border tampering has failed, 2011). In late April, the adverse consequences of Australia’s immigration detention arrangements were once again laid bare when riots broke out at the Villawood detention centre. When Bowen vowed to punish the ringleaders by introducing legislative amendments that would see anyone that committed an offence while in immigration detention automatically fail the character test and be limited to applying for provisional protection visas (Bowen, 2011a; Coorey, 2011a), refugee advocates accused him of “bringing back temporary protection visas in all but name” (Hanson-Young, 2011b; Packham, Vasek & P. Taylor, 2011; Dodd, 2011a). Once again, the Coalition invoked humanitarian rhetoric for exclusionary purposes by stating that while “Australians generally [are] not without sympathy for desperate people,” riot participants should be deported if they are found to have broken the law 141

(Abbott, 2011b; Abbott, 2011a). Despite these varied responses, there was now a discernible current of opinion that these measures were merely the latest indicators of “a PM performing poorly and trying to cover up mistakes and failures” (Grattan, 2011b; D. Shanahan, 2011a; Abbott, 2011c).

The Christmas Island disaster and the debates that followed provide another significant insight into why Labor’s humanitarian platform on boat arrivals was not only unable to be sustained during Rudd’s first term in office, but also fully repudiated during the Gillard era. In addition to highlighting the growing problem of asylum seeker deaths at sea, the tragedy had the effect of thrusting the drownings argument firmly into the public spotlight. The negative reaction to Bolt’s vitriolic comments did not diminish the fact that many political commentators agreed that the deaths were a direct reflection of Labor’s ongoing failure to put effective deterrents in place (Nicholson, 2010; Tragic loss of life, 2010). Second, the tragedy provided the necessary scope for the Coalition to advance its position that Labor’s policies were actively harming, rather than protecting, the welfare of IMAs. While the use of compassion rhetoric had been largely sidelined during the 2010 Federal Election, the tepid voter reaction to Abbott’s ‘Stop the Boats’ policy, his subsequent failure to form government, and severe domestic backlash over Morrison’s objections to funding funeral costs had reinforced the necessity of making the Coalition’s policy stance on IMAs more congruent with contemporaneous standards of normative appropriateness. Therefore, its re-emergence was borne out of both necessity and opportunity. Finally, the tragedy had weakened the position of the Greens who advocated an open borders approach to dealing with irregular migration, while Manne’s public repudiation of his erstwhile opposition to offshore processing marginalised the viewpoints of refugee advocates who continued to reject the Pacific Solution as a viable policy solution. As the next section will demonstrate, the now prevalent view that Labor’s policies actively harmed the welfare of IMAs enabled the Coalition to appropriate the Good Samaritan motif for its own purposes when Gillard unveiled her second asylum seeker policy initiative: the Malaysia Solution.

The ‘Malaysia Solution’

On May 7, Gillard and the Malaysian Prime Minister, Najib Razak, announced that the two countries had concluded an agreement to transfer 800 asylum seekers from Australia to Malaysia in exchange for 4000 UNHCR-recognised refugees (Gillard & Razak, 2011). After stating that “Australians [believe] in honouring our international protection obligations,” Gillard argued that the agreement would finally enable the government to “break the people smugglers’ business model” (Gillard & Bowen, 2011a). Once again, the plan was vehemently opposed by both the Greens and the Coalition. Hanson-Young declared that she was “appalled” by the announcement (Hanson-Young, 2011c), 142 while refugee advocates decried Malaysia’s non-signatory status to the Refugee Convention, poor human rights record and troubling history of refoulement (Metherell & Allard, 2011; Powell, 2011; Gifford, Correa-Velez & McMichael, 2011; Steketee, 2011). The Coalition similarly called it an “absolutely appalling deal,” albeit due to the unequal distribution of incoming refugees and outgoing asylum seekers (Abbott & Billson, 2011). Gillard’s apparent reversal of her staunch opposition to offshore processing in non-signatory countries led the Australian’s Greg Sheridan to argue that it proved “just how fatuous the government's confused moralising on this issue has been” (Sheridan, 2011b).

Gillard’s apparent hypocrisy in formulating an agreement with Malaysia while continuing to reject Nauru as a viable policy option in turn enabled Abbott to further legitimate his claim that the Pacific Solution constituted the most humanitarian mechanism to prevent further drownings at sea (A win, but move, 2011; Abbott & Billson, 2011). When Malaysia indicated that IMAs would be processed in accordance with its domestic laws rather than international human rights conventions (Needham & Allard, 2011; Hanson-Young, 2011d), the Coalition used highly emotive language in order to communicate the adverse humanitarian consequences of the deal to the Australian public. Morrison compared their potential treatment to the fate of cattle being exported for slaughter, an analogy that was both timely and highly effective in the wake of the Indonesian abattoir scandal Katharine Murphy & Gordon, 2011; Commonwealth [HoR], 30 May 2011, pp.4954-4955). Abbott similarly highlighted their potential fate when he argued that the deal was “vastly more cruel [than] anything the Howard Government ever did” (Abbott, 2011d) and that “[i]n Nauru people would get Australian style human rights” (Commonwealth [HoR], 26 May 2011, p.4839). He further stated that while he was “not in the business of criticising any other country…it’s important that Australia [fully] meet its obligations and its responsibilities to boat people” (Abbott & Morrison, 2011).

The effectiveness of this argument was demonstrated by how readily it was accepted and subsequently replicated in the public sphere. When reports emerged in late May that asylum seekers were being subjected to widespread abuse in Malaysian detention centres (Thom, 2011), an Age/Nielsen poll found that 58% of respondents opposed the people swap deal (Grattan, 2011c). Bowen responded to these criticisms by maintaining that the deal would “reduce the risk of another boat tragedy” (Bowen, 2011c) by discouraging IMAs from undertaking the perilous journey “when there is clearly no guarantee of resettlement in Australia” (cited in Gordon, 2011a). Nevertheless, the government continued to come under fire in early June for including children and unaccompanied minors in the deal for the ostensible purpose of deterring parents from sending them ahead on boats (L. Shanahan & Vasek, 2011). Their inclusion led the UNHCR to caution that Australia was 143 potentially breaching the CRC by failing to act in the best interest of the child (Sheridan, 2011c), while 14 Labor MPs broke ranks with the government by stating that “[i]t would be an injustice for us [to] send them overseas to a situation we cannot control” (cited in Perpitch, 2011; Franklin & Nadin, 2011). At the same time, more refugee advocates, including human rights lawyers Marion Le and Julian Burnside and former AHRC Commissioner Sev Ozdowski, publicly repudiated their staunch opposition to the Pacific Solution on the basis that it was “easily the lesser of two evils,” even as they continued to denounce its immorality (Ozdowski, 2011; Franklin, Vasek, J. Kelly & Massola, 2011).

The Coalition’s argument that the Malaysia Solution contravened Australia’s international obligations asylum seekers by violating their human rights presented the most formidable challenge yet to Gillard’s claim that her regional approach was more humane than Abbott’s revised Pacific Solution. First, it finally provided him with the necessary rhetorical tools in order to gain the upper hand in the asylum seeker debate. Until now, his use of compassion rhetoric had received a mixed public reaction due to the perception that it was largely driven by political opportunism. However, the Malaysia Solution legitimated the Coalition’s argument that the government was not only “cynically us[ing] the refugee convention as a political prop” (Morrison, 2011a), but that it had directly repudiated its erstwhile position that Australia had a non-derogable obligation to protect the ‘vulnerable stranger.’ As a result, it appealed to a wider cross-section of the voting demographic whose primary concern with the Coalition’s policies was that would harm the welfare of IMAs. Second, the public declarations from a number of high-profile refugee advocates that the Pacific Solution should be reintroduced on human rights grounds had the effect of further legitimating the Coalition’s position that stronger deterrence measures were necessary in order to protect the welfare of IMAs.

As Gillard approached her second year in office, there was consequently a strong current of opinion that Labor had “lost its moral compass [and] a lot of people [are] asking what values, if any, [it] now ha[s]” (Abbott, 2011e; Abbott, 2011f). A Newspoll in mid-June found that voter satisfaction with her performance had fallen to a record low of 30% (D. Shanahan, 2011b), while an Age/Nielsen poll showed that 76% of respondents were unhappy with her handling of the asylum seeker issue (Grattan, 2011e; Coorey, 2011c). In addition to being condemned by all sides of the political spectrum (Commonwealth [HoR], 22 June 2011, pp.6917-6919; Hanson-Young, 2011e; Fraser, 2011), the Australian declared that the Malaysia Solution had proven that Gillard was willing to “shred any conviction, or walk away from any principle, to cling to the job of Prime Minister” (R. Fitzgerald, 2011) while the Age asserted that “[n]obody can believe the government on asylum seekers any more” 144

(Grattan, 2011). When Bowen stated that the Christmas Island disaster had motivated him to seek stronger deterrence-based policies, Bolt declared that it amounted to an admission that “Labor did indeed lure people to their deaths” (Bolt, 2011a). These arguments led the Coalition to intensify its attacks on the government by accusing Bowen of “pretend[ing] that he is concerned about the welfare of asylum seekers” (Commonwealth [HoR], 14 June 2011, p.5866; Morrison, 2011b), prompting him to retort that they were “crying crocodile tears about the[ir] human rights” (Commonwealth [HoR], 22 June 2011, p.6921; Gillard, 2014, pp.191-192).

The M70 Ruling and its Aftermath

On July 25, Australia finalised its people-swap agreement with Malaysia. Despite ongoing criticisms over the inclusion of children and unaccompanied minors in the deal (Hanson-Young, 2011f; P. Maley, 2011a), Gillard called it a “groundbreaking arrangement [that] demonstrates [our] resolve [to] stop people risking their lives at sea” (Bowen & Gillard, 2011). However, the deal suffered a significant setback when refugee lawyer David Manne was granted an interim order by the High Court on August 8 to prevent the removal of more than 100 boat arrivals (P. Maley & P. Taylor, 2011; Morrison, 2011c). As the government remained adamant that its resolve to implement the Malaysia Solution “remains undiminished” (Bowen, 2011d), Gillard announced three days later that PNG’s Prime Minister, Peter O’Neill, had given his in-principle support to reopen the offshore processing centre on Manus Island (Gillard, 2011a). The reversal of the Rudd government’s staunch opposition to the site prompted Abbott to declare that it constituted “a tacit admission that John Howard had it right” (Abbott, 2011g; Morrison, 2011c). This view was given further credence when another prominent refugee advocate, Frank Brennan, rejected the Malaysia Solution on the basis that “[i]n Nauru, at least [once] someone was proved to be a refugee [they] would be guaranteed resettlement” (cited in P. Maley, 2011b). Brennan’s addition to the growing list of refugee advocates that had reluctantly voiced their support for the Pacific Solution prompted the Australian to praise them for repudiating their “moral delusion” that softening Australia’s asylum seeker policy was more ‘compassionate’ (Moral vanity must not, 2011).

On August 31, the High Court announced its ruling in the case of Plaintiff M70/2011 v Minister for Immigration and Citizenship.51 In a 6 to 1 judgment, it declared that the Malaysia Solution was illegal on the basis that section 198A(3)(a)(i)-(iv) of the Migration Act, which outlined a range of protections that a declared country needed to satisfy before an offshore entry person could be taken there, had not been met (at [29]). Given the non-binding nature of the people swap deal and Malaysia’s status

51 Plaintiff M106 of 2011 by his litigation Guardian, Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32. 145 as a non-signatory to the Refugee Convention, it held that the deal contravened Australia’s international obligations because Malaysia could not be compelled to adhere to ‘relevant human rights standards’ when processing IMAs (Wood, 2012, pp.283-286). As the Greens and refugee advocates praised the court for “ensur[ing] that Australia does its job under the refugees convention” (Akerman, 2011; Wilson, S. Maher & Edwards, 2011), Abbott asserted that it had vindicated the Coalition’s argument that “the protections required under the Act simply do not exist in Malaysia” (Abbott, Morrison & Keenan, 2011). Significantly, all three major media outlets asserted that the decision had left the government with little choice but to consider the “politically unpleasant” option of reintroducing the Pacific Solution in order to stem the inevitable increase in boat arrivals (Grattan, 2011f; D. Shanahan, 2011c; Coorey, 2011d; Allard, 2011). The prevalent view that the Malaysia Solution had proven to be “a disaster for the Gillard government” (Sheridan, 2011d) was further reflected in a Newspoll in early September, which found that Gillard’s voter satisfaction had fallen to a record low of 23% while Rudd had surged ahead as preferred Labor leader with 57-24% (D. Shanahan, 2011d; Carney, 2011a).

In order to resolve the political quagmire that the M70 decision had engendered, Bowen introduced the Migration Legislation Amendment (Offshore Processing and other Measures) Bill 2001 (Cth) on September 21 with the aim of ensuring that “the legal authority is there [to put] beyond legal doubt offshore processing measures” (Commonwealth [HoR], 13 September 2011, p.9877; Gillard & Bowen, 2011b). The amendment was opposed by the Coalition and the Greens, with both parties expressing concerns that it would “give even less human rights protections to vulnerable people than the legislation introduced by the Howard Government in 2001” (Hanson-Young, 2011g; B. Brown, 2011; Abbott, Brandis & Morrison, 2011). While Abbott argued that “[n]o decent country would expose people who once had its protection to the kind of treatment that they would get in Malaysia” (Commonwealth [HoR], 21 September 2011, p.11165), Bishop declared that the government was “seek[ing] to walk away from the 1951 refugee convention” (Commonwealth [HoR], 22 September 2011, p.11183-11184). As the Coalition’s position was further strengthened on September 27 when Nauru officially became a party to the Refugee Convention (Nauru now bound, 2011), Gillard was forced to concede that the legislative changes would not pass through parliament (Gillard & Bowen, 2011c). After lambasting the Coalition for failing to support the bill, Gillard asserted that “if we do see [people] taking risks by getting on those boats, then there is one person to blame and that is Tony Abbott” (cited in Gordon, 2011b; Gillard, 2011b; O’Connor, 2011a). The statement reflected a significant shift in the government’s rhetoric as it sought to break the perception that it was “conduct[ing] the debate on Tony Abbott's terms” (Gordon, 2011c; Carney, 2011b; A government addicted, 2011; Sheridan, 2011e). Nevertheless, a Newspoll in mid-October found that only 17% of 146 respondents were satisfied with Labor’s handling of the asylum seeker issue, compared to the Coalition’s 44% (D. Shanahan, 2011e).

The prediction that the demise of the Malaysia Solution would lead to an increase in boat arrivals appeared to be realised when three boats carrying 138 passengers arrived in the space of 24 hours in late October, prompting Morrison to declare that it was “business as usual under Labor” (Wong & Morrison, 2011). In response, O’Connor appropriated one of the Coalition’s signature phrases by describing Abbott as “the best friend that people smugglers have ever had” (O’Connor, 2011b; Needham, 2011a). When 27 IMAs drowned on November 1 after their boat sank off the coast of Java (Allard, Flitton & Needham, 2011), Bowen appeared to indirectly blame the Coalition for the tragedy when he stated that “I have never been more disappointed to be proven right” (Bowen, 2011e; Commonwealth [HoR], 2 November 2011, p.12489; O’Connor, 2011c). As the Greens continued to call on the government to “create safer pathways for asylum seekers” (Hanson-Young, 2011i), the Coalition remained adamant that a “clear and definite policy to stop the boats” had to include offshore processing on Nauru (Grattan, 2011g; Commonwealth [HoR], 2 November 2011, p.12491). The political impasse prompted the Age’s Daniel Flitton to argue that while both major parties claimed that their policies were congruent with Australia’s international obligations, they were ignoring the victims in order to “keep up their petty squabble, draped with a cloak of sympathy and moral indignity” (Flitton, 2011b; J. Kelly, 2011a, Hanson-Young, 2011h; Gordon, 2011d).

In early November, Gillard’s leadership regained some momentum after she successfully negotiated the Clean Energy Bills through parliament and reformulated the Minerals Resource Rent Tax (MRRT) (Coorey, 2011e). The government also drew cautious praise from the Greens and refugee advocates for placing more IMAs in community detention and for streamlining the refugee determination process in order to give them the same access to merits review as air arrivals (Bowen, 2011f; J. Kelly, 2011b). Nevertheless, Gillard continued to face criticism over her policy failures as 920 IMAs arrived in November alone (Needham, 2011b). As the first anniversary of the Christmas Island disaster approached, the Australian surmised that “[i]f the government fails to act, [it] will be held accountable for jeopardising border security [and] risking another tragedy” (Gillard and Abbott must act, 2011). On December 18, these concerns appeared to be justified when up to 200 asylum seekers drowned off the coast of Java (Stevenson, Willingham & Allard, 2011). This time, the Coalition’s response was less restrained as Bishop declared that “[i]t is time for the Prime Minister to swallow her pride and to reinstate the policies that have been proven to work” (Bishop, 2011). However, it was the Greens that came under fire when Hanson-Young reportedly responded to Latham’s claim that “[y]ou can't be compassionate [if] you encourage people to get on boats” by 147 stating that “[t]ragedies happen. Accidents happen” (cited in Franklin, Owen, Wilson & Kerr, 2011). The resulting outrage had the effect of further marginalising the Greens as all three major criticised them for maintaining their “indefensible” stance against offshore processing (Moral dimension of, 2011; Franklin, 2011; Manne, 2011; Stop the politicking).

By the end of 2011, a total of 4565 IMAs had reached Australia’s territory, with 1781 arriving in the last two months alone (J. Phillips & Spinks, 2013, p.22). While this number was lower than the 2010 total, the sudden increase in IMAs after the demise of the Malaysia Solution signalled the beginning of what would become the largest volume of boat arrivals that Australia had ever witnessed. The pressure on Gillard to formulate an effective policy response consequently reached a new level of urgency in 2012 as both leaders attempted to cast the blame for the new arrivals on the other party’s refusal to reach a political compromise on offshore processing. The next section will demonstrate that while these developments did lead to a corresponding increase in exclusionary rhetoric, it was the drownings argument that continued to dominate both political and public debates on the issue. As the reintroduction of the Pacific Solution on humanitarian grounds became an increasingly normalised concept in both the political and spheres, the normative foundation of Labor’s 2008 position that it had “maintain[ed] strong border security [while] treating people fairly and humanely” (Evans, 2008c) had been completely de-legitimised. This in turn had significant consequences for how the domestic meaning-in-use of international asylum seeker norms would subsequently be interpreted and applied.

A ‘comprehensive policy failure’52

In January 2012, the government continued to entreat the Coalition to break the deadlock on offshore processing as the volume of boat arrivals continued to increase. These overtures were rejected by Morrison, who remained adamant that the Opposition would only support “the restoration of the policies [Labor] abolished” (Maley, 2012a; Gordon, 2012a). When Abbott further announced that he would turn back every SIEV to Indonesia if elected, he was roundly condemned by the government and numerous media outlets for advocating a “highly dangerous policy [that] risks the lives of [both] asylum seekers [and] naval personnel” (Bowen, 2012a; Gillard & Macklin, 2012; P. Kelly, 2012a; Dodd, 2012; Needham & Allard, 2012). However, the Australian’s Dennis Shanahan surmised that the proposal could “win significant public sympathy for a leader who at least promises to take tough action” (Shanahan, 2012a). Significantly, the Coalition’s renewed use of hardline rhetoric was accompanied by a corresponding willingness by the government to challenge the domestic applicability of international asylum seeker norms. During a keynote speech in early 2012, Bowen

52 Sheridan, 2012. 148 reiterated Morrison’s previous assertion that while “we fully accept the Refugee Convention…[its] terms have become outdated and [its] inflexibility is being exploited” (Bowen, 2012b). These shared sentiments in turn signalled the beginning of another significant shift in the asylum seeker debate as the normative stances of both parties became increasingly aligned, even as their policies continued to diverge.

On February 13, Independent MP Rob Oakeshott introduced the Migration Legislation Amendment (The Bali Process) Bill 2012 (Cth) into parliament in order to break the policy deadlock by enabling any members of the Bali process to be declared offshore countries (Oakeshott, 2012). The Coalition immediately dismissed it as a “carbon copy” of the government’s proposal, while the Greens vowed to block it in the Senate (J. Kelly, 2012a). Two weeks later, Gillard’s leadership came under direct challenge when Rudd resigned as Foreign Minister and called for a leadership spill amid reports that he had grown increasingly uncomfortable with her handling of the asylum seeker issue (P. Maley, 2012b; Coorey, 2012a). While Gillard won by a comfortable margin of 71 to 31 (Crowe, 2012; P. Kelly, 2012b), a Newspoll showed that 53% of respondents had preferred Rudd as Prime Minister, compared to Gillard’s 30% (D. Shanahan & Franklin, 2012). In the wake of the failed challenge, the government increased its attacks on the Coalition as Gillard blamed Abbott’s ‘negativity’ for the current impasse and declared that “they want to see more boats despite the risks to lives” (Commonwealth [HoR], 28 February 2012, p.2041; Commonwealth [HoR], 21 March 2012, p.3768; Gillard, 2012a). In addition to mirroring Morrison’s alarmist rhetoric on IMAs in order to neutralise its effectiveness as a strategic attack, the new Minister for Home Affairs, Jason Clare, attempted to regain Labor’s moral high ground by reminding Abbott that “we can help stop people dying at sea [by] pass[ing] legislation to introduce offshore processing” (Bowen & Clare, 2012a; Bowen & Clare, 2012b).

Despite the government’s efforts to regain the ascendancy in the asylum seeker debate, it continued to come under sustained criticism over its Immigration detention policies. In mid-March, reports emerged that Indonesian minors who were suspected of people smuggling offenses were being held for up to 735 days (and up to 301 days without charge) in adult prisons while their ages were verified (Needham, 2012a). Nevertheless, Labor’s revised tactic of mimicking the Coalition’s rhetoric also prompted Morrison to diversify his own strategy by partially attributing Gillard’s inability to stem the flow of boat arrivals on the Labor/Greens alliance. When the number of IMAs since November 2011 passed 3,000 in mid-April, he declared that the government’s “embrace of the Greens policies [has] supercharged the people smugglers’ business model [and] increas[ed] the risk to people making the dangerous boat journey to Australia” (Morrison, 2012a). Clare’s subsequent attempt to adopt a 149 more conciliatory tone by stating that “[t]he Australian people [expect] us to work together to stop people dying at sea” (Clare, 2012a) did nothing to prevent Gillard’s falling domestic popularity. In late April, a Newspoll found that Abbott had taken a narrow lead as preferred Prime Minister over Gillard at 41-39% (D. Shanahan, 2012b). As the number of boat arrivals since the beginning of the year reached 2500 in early May (J. Kelly, 2012b), Abbott’s assertion that “a trickle has become a flood because this government has put the people smugglers back in business” was consequently far more favourably received than it had been during the 2010 Federal Election (Abbott & Laundy, 2012).

In June, growing domestic concerns over the new arrivals were further exacerbated when reports emerged that prominent people smuggler Ali al-Abassi (“Captain Emad”) had established a base of operations in Australia after being granted refugee status (P. Maley & Wilson, 2012; Flitton & Coorey, 2012). Bowen responded to the allegations by stating that they “underlined some of the complexities [when] it comes to [processing] asylum claims” (Bowen, 2012c), prompting the Coalition to retort that the government’s failure to monitor his activities “represents a complete systematic failure [to] protect our borders” (Keenan, 2012a; Coorey, 2012b). When Captain Emad managed to evade capture by leaving the country, Abbott called the situation an “absolute fiasco” and announced that the Coalition would tighten the refugee determination process by placing a presumption of deceit on IMAs that arrived without proper documentation (cited in Rout & Wilson, 2012; Franklin & Packham, 2012a). He further asserted that while “we have a responsibility to be a humane country, [we] have a greater responsibility to be a self-respecting country that protects its own borders” (Abbott, 2012a). The Coalition’s growing assertiveness was arguably a reflection of its recognition that the normative parameters of Australia’s socio-political climate were once again shifting towards a greater acceptance of exclusionary arguments, albeit for humanitarian purposes.

During this period, political commentators continued to urge both leaders to “end the focus on their differences and forge a workable compromise” (Time to show leadership, 2012; Boat dilemma needs honesty, 2012). However, they also became increasingly vocal in expressing their preference for the Coalition’s offshore processing policy. The Age’s Daniel Flitton encapsulated this perspective when he asserted that “[if you] care for the welfare of refugees, vote for Tony Abbott [because], mean- spirited as it may be, at least he has a plan that will stop people risking their lives at sea” (Flitton, 2012a). This view took on an added imperative on June 21 when an estimated 90 asylum seekers drowned after their vessel capsized 200km off the coast of Christmas Island (Grattan, Gordon & Bachelard, 2012). The tragedy prompted Abbott to once again draw on humanitarian rhetoric in order to reinforce the necessity of reintroducing the Pacific Solution by asserting that “all of us [must] consult our consciences [and] put policies in place that will end forever this evil trade 150

(Commonwealth [HoR], 25 June 2012, p.7658). Despite coming under increased pressure from the government, moderate Coalition MPs and some Independents to end the political impasse (Clare, 2012b; Grattan & Gordon, 2012a; Windsor, 2012; Van Onselen, 2012a), he remained adamant that “the important thing is not to have policies which are bipartisan [but] which are effective [because] if the boats keep coming, the tragedies keep happening” (Abbott, 2012b; Keenan, 2012b; Morrison, 2012b). At the same time, the Greens continued to face criticism for exacerbating the problem, with radio commentator Steve Price declaring that they should “be embarrassed when there are people dying at sea [and] are as much to blame for this as anybody” (Clare, 2012b).

Once again, the dynamics of the asylum seeker debate during the first half of 2012 demonstrate that specific rhetorical strategies can be rendered ineffective when they are perceived to be less legitimate than those of their opponents, even if they are similarly framed. Just as Abbott’s attempt to use compassion rhetoric had been greeted with a muted public response in late 2009, Labor’s appropriation of the Coalition’s alarmist rhetoric was ineffective because its sustained opposition to offshore processing on Nauru was no longer congruent with the prevailing current of domestic opinion. By the end of June, the belief that it constituted the most humanitarian mechanism with which to prevent IMAs from risking their lives at sea had attained such primacy that Gillard consequently had little choice but to formulate what would become the government’s final attempt to resolve the issue: The Expert Panel on Asylum Seekers.

The Expert Panel on Asylum Seekers

On June 27, Gillard expedited the final reading of Oakeshott’s Bali Process bill in order to finally break the political impasse on offshore processing, setting the scene for a highly charged parliamentary debate. During his speech, Keenan became visibly upset as he relayed first-hand accounts of the Christmas Island disaster in order to reinforce his argument that “the opposition's policies [are] necessary [to] stop this from happening again in the future” (Commonwealth [HoR], 27 June 2012, p.8228). Morrison reiterated that the bill would “effectively [abolish] all human rights protections that are legally binding under our Migration Act” (Commonwealth [HoR], 27 June 2012, p.8224; see also p.8230; p.8240; p.8243), prompting Bowen to retort that “there is nothing as harsh as saying to people, ‘You must risk your life to come to Australia in order to receive [its] protection’” (Commonwealth [HoR], 27 June 2012, p.8227; see also p.8223; p.8281). Once again, the scope of Australia’s international obligations to asylum seekers became a focal point of the debate as MPs from both major parties accused each other of being hypocrites for using humanitarian arguments in order to promote their respective political agendas. Labor MP Michael Danby argued that the 151

Coalition of using “the Refugee Convention [as] a cloak for not taking any action” (Commonwealth [HoR], 27 June 2012, p.8246; p.8251; p.8253). Conversely, Liberal MP Donald Randall maintained that Labor “cannot [say] they want countries [that] have signed the conventions and then [send] them to a country that doesn't have the[m]” (Commonwealth [HoR], 27 June 2012, p.8266).

The bill was eventually passed in the lower house by a narrow margin of 74-72 (Grattan, Gordon, Willingham, Bachelard & Partenza, 2012). Nevertheless, the emotional scenes were greeted with a mixture of disappointment and incredulity by all three major media outlets. Although the sincerity of MPs in grieving for lives lost at sea was generally not disputed, the Australian’s Dennis Shanahan accused Gillard, Abbott and new Greens leader Christine Milne of being “full of sympathy but bereft of solutions” (D. Shanahan, 2012c; L. Taylor, 2012a). The Age similarly stated that “[t]he battle lines in this debate have become so blurred it's difficult to judge which of the proposed solutions to the asylum seeker boats is the most cruel” (A moving debate, 2012; J. Maley, 2012a; Hartcher, 2012). When the bill was inevitably voted down in the Senate on June 28 (Grattan et al, 2012), Bowen announced that the government would establish an Expert Panel on Asylum Seekers, to be convened by the former Chief of the Australian Defence Force Angus Houston, refugee counsellor and advisor Paris Aristotle, and former DFAT secretary Michael L'Estrange. Significantly, the panel’s primary term of reference was to formulate durable policy solutions “to prevent asylum seekers [from] risking their lives on dangerous boat voyages to Australia” (Commonwealth [HoR], 28 June 2012, pp.8435- 8436; Grattan & Gordon, 2012b; Gillard & Bowen, 2012a).

The establishment of the Expert Panel reflected the fact that Gillard had been left with few political options in the wake of her numerous failed attempts to implement a ‘regional solution’ on boat arrivals, the Christmas Island disaster, and the adverse M61 and M70 High Court decisions. This state of affairs that was arguably equally attributable to her own actions and the fact that the Coalition had largely succeeded in pushing Labor into a rhetorical corner by legitimating its ‘Stop the Boats’ policy on humanitarian grounds. In the wake of the announcement, more refugee advocates, including Independent MP Nick Xenophon and refugee lawyer George Newhouse, declared their in-principle support for offshore processing on the basis that “[t]he stink of a compromise is better than the stench of death” (cited in Coorey, 2012c). Significantly, both major parties became more vocal in challenging the domestic applicability of international asylum seeker norms during this period as 1664 IMAs arrived in June alone, the highest number in a single month since August 2001 (Franklin & Packham, 2012b). When Morrison stated in mid-July that the Refugee Convention was ill-equipped to deal with the contemporary challenges of people smuggling and ‘forum shopping’ (cited in Wilson & P. Maley, 2012), Bowen lambasted him for “only want[ing] offshore processing [in] signatory 152 countries [while] question[ing] the practicality and relevance of that same agreement” (Bowen, 2012d). However, Bowen himself challenged these norms when he stated that “there is very strong support for policies that deter boat journeys and give more places to people sitting in desperate and prolonged circumstances around the world” (cited in Stewart & Franklin, 2012; Bowen, 2012e).

On August 13, the Expert Panel on Asylum Seekers delivered its final report. The Houston report recommended that Australia’s humanitarian intake should be increased to 20,000 (5,000 less than refugee advocates had asked for). However, it also introduced a range of largely punitive measures in order to “discourag[e] asylum seekers from risking their lives on dangerous maritime voyages to Australia” (Australian Government, 2012, p.8). The ‘no advantage’ principle was aimed at ensuring that IMAs “will not be advantaged if they pay people smugglers to attempt dangerous irregular entry into Australia instead of pursuing regular migration pathways” (p.11). The panel also recommended that while the Malaysia Solution should be “built on further, rather than being discarded or neglected” (p.16), the government should “move immediately to establish facilities in Nauru and Papua New Guinea (PNG) for the processing of protection claims by IMAs” (p.12). Significantly, the panel’s assertion that asylum seekers in offshore processing centres needed to be “provided with protection and welfare arrangements consistent [with] international law” (p.48) was qualified by the statement that a regional cooperation framework “will not be effective if it is confined only to those countries which have signed the Refugees Convention” (p.34). Finally, it recommended that the refugee component should comprise 12,000 of the available places in Australia’s humanitarian program and that IMAs should not be eligible to sponsor family members through the SHP (pp.14, 16, 18). While it pointed out that the Coalition’s boat turnback policy unfeasible in its current form, it also recommended that “disruption strategies be continued as part of any comprehensive approach to the challenges posed by people smuggling” (pp.13, 18).

The Houston Report had the effect of turning the drownings argument from a moral imperative to protect the lives of IMAs into a non-derogable duty to prevent them from reaching Australia’s territory in the first place. By developing new and enhanced procedural norms with the express intention of codifying them into legislative principles, it provided the most effective challenge yet to the domestic applicability of international asylum seeker norms by demonstrating that the primary purpose of these deterrence-based policies was to protect IMAs from harm. Moreover, it signalled the final demise of Labor’s 2007 humanitarian platform on IMAs by completing the legitimation process that had seen the Coalition’s argument that the Pacific Solution ‘saved’ lives become the dominant paradigm in the asylum seeker debate. Since the report had been initiated at the behest of 153 the Gillard government, it now had little choice but to reintroduce the policies that it had so vehemently opposed.

The practical consequences of this normative realignment process were immediately made apparent when Bowen announced that the government would support all of the recommendations and would introduce relevant legislative amendments in order to pave the way for offshore processing on Nauru and PNG. When Gillard attempted to stave off the inevitable backlash by maintaining that “this isn’t a day [to] play politics [when] too many lives have been lost” (Bowen & Gillard, 2012; Gillard, 2012c; Gillard, 2012b), Abbott declared that he was “thrilled [that] the Government has finally [agreed] to stop the boats [after] so much trauma, tragedy and cost” (Abbott, 2012c; Stewart, 2012). As the Greens and refugee advocates condemned the report for the punitive nature of its deterrence- based recommendations (J. Maley & Bachelard, 2012; Nicholson, Dodd & Wilson, 2012; Wilson, 2012a), both the Sydney Morning Herald and the Age pointed out that the government’s acquiescence constituted a “total political surrender” to the Coalition’s sustained pressure to adopt its policies (L. Taylor, 2012b; Coorey, 2012d; Carney, 2012; Grattan, 2012a). Bolt was more direct when he asserted that the report had given Gillard “an excuse to do precisely what she should have done years ago [but] failed to through stupidity and self-interest” (Bolt, 2012). While numerous political commentators expressed disquiet over the possibility that the ‘no advantage’ principle could condemn IMAs to potentially indefinite detention (Flitton, 2012c; Long wait in store, 2012), all three major media outlets agreed that the measures were necessary in order to prevent further deaths at sea (Expert panel on refugees, 2012; A balanced view, 2012; Lives depend on compromises, 2012; Flitton, 2012b).

On August 14, the government moved to rush the amended legislation through parliament, prompting Abbott to call on Gillard to apologise “to the people of Australia [and] the illegal boat arrivals who have suffered because of the policies this government put in place” (Commonwealth [HoR], 14 August 2012, p.8512; see also pp. 8516-8518; pp. 8529-8531). The bill was opposed by a number of Greens, Liberal and Independent MPs, with Wilkie stating that “it escapes me how anyone [could] seek to implement any solution not underpinned by [our] moral framework and our [protection] obligations” (Commonwealth [HoR], 14 August 2012, p.8539; Commonwealth [HoR], 15 August 2012, pp.8683-8684; 8699-8700). Nevertheless, the bill was eventually passed in both houses after the Coalition opted to support it on the basis that it was now “effectively the opposition's bill” (Commonwealth [HoR], 14 August 2012, p.8511; J. Maley, 2012b). After dismissing Labor’s erstwhile opposition to offshore processing as “a matter of history” (Kerr, 2012), Gillard maintained that her primary goal was to “get the job done” by implementing all of the Houston Report’s recommendations (Gillard, 2012b). On August 23, the government announced that it would increase 154

Australia’s humanitarian intake to 20,000 for 2012-13 and resettle an additional 400 refugees from Indonesia “to underscore our commitment to offering safe alternatives to dangerous boat journeys” (Gillard & Bowen, 2012b). The move was welcomed by the Greens, UNHCR and refugee advocates, even as they continued to criticise the ‘no advantage’ policy (Grattan, 2012b; Hanson-Young, 2012a), However, as IMA numbers continued to rise, Clare conceded that “people-smugglers [will] try and squeeze every last dollar out of this” (cited in Merritt, Wilson & S. Maher, 2012).

The reintroduction of the Pacific Solution appeared to pay immediate dividends for the government. A Newspoll in late August found that Labor’s primary vote had risen to 35% (Grattan, 2012c), while an Age/Nielsen poll showed that 67% of respondents supported the panel’s recommendation to process asylum seekers on Nauru and Manus Island (Grattan, 2012d). However, Gillard’s hopes that the recommendations would create an effective deterrent against boat arrivals were dashed when a record 1,864 people arrived on 32 boats in August alone (Abbott, 2012d). The numbers prompted Abbott to increase pressure on Gillard to reintroduce the “full suite of measures” that underpinned the Pacific Solution (cited in Owens, 2012). At the same time, the Coalition became increasingly prolific in using hostile rhetoric against asylum seekers as Morrison asserted that Sri Lankan IMAs, who had increased from 211 in 2011 to 2992 since the beginning of 2012, were not genuine refugees and should be sent back before their claims were processed (Flitton, 2012d). While Bowen and Hanson-Young both accused him of “ignor[ing] Australia’s obligations under the Refugee Convention” (Bowen, 2012f; Hanson-Young, 2012b), Abbott maintained that “without all of the elements of an effective policy, [the] boats will keep coming” (Abbott, 2012e).

As the number of boat arrivals since the beginning of the year exceeded 11,000 in late September Morrison, 2012c; Keenan, 2012c), both centre-left and conservative media outlets increasingly began to echo the Coalition’s calls for the full reintroduction of the Pacific Solution. The Age pointed out that its effectiveness stemmed from the fact that its “message was unambiguous” (Gordon, 2012b), while the Australian accused the government of continuing to “appeas[e] the compassionistas” by refusing to consider boat turnbacks (Kenny, 2012). At the same time, domestic criticisms of Gillard’s leadership performance reached a new level of viciousness when radio commentator Alan Jones asserted that her father, who had recently passed away, had “died [of] shame” due to his daughter’s political incompetence (Aston, 2012). Despite his insistence that the comments were “wrong, unacceptable [and] offensive,” Abbott echoed Jones’s words in parliament when he stated that “[t]his Prime Minister should be ashamed of herself [and] for a government which should have already died of shame” (Commonwealth [HoR], 9 October 2012, p.11576). While the comments led Gillard to make her seminal ‘misogyny speech’ on October 9 (Commonwealth [HoR], 9 October 2012, p.11581- 155

11583; Masters & Uhr, 2017, p.52), numerous media commentators expressed their cynicism over her purported proclivity to play the ‘gender card’ in order to detract from her own leadership failures (Pearson, 2012; Rich vitriol shrouds, 2012).

These developments consequently led the government to adopt an increasingly hardline stance on boat arrivals in order to match the Coalition’s combative rhetoric as Morrison announced that it would make IMAs wait for up to five years in offshore detention with no guarantee of being resettled in Australia (P. Maley, 2012c). On October 31, the government introduced the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Bill 2012 (Cth) into parliament. The bill aimed to excise Australia’s mainland from the migration zone by expanding the definition of an 'offshore entry person' to include anyone arriving in Australia by boat (Bowen, 2012g; Commonwealth [HoR], 31 October 2012, pp.12738-12739). The Greens and refugee advocates quickly condemned the government for attempting to “wipe Australia off the map when it comes to our global obligations” (Milne & Di Natale, 2012; Hanson-Young, 2012c; Grattan, 2012f; Hall & Doherty, 2012), while the Coalition highlighted its hypocrisy for opposing a similar Howard-led initiative in 2006 (Grattan, 2012e; P. Maley, 2012d). As Australia’s detention centres struggled to cope with the 6,575 new arrivals since August 13 and hundreds of IMAs staged a mass hunger strike on Nauru in order to protest delays in processing their applications (Wilson, Coorey & Flitton, 2012; Hall 2012a; Wroe, 2012), the pressure on Gillard to implement a strong deterrent had reached unprecedented heights.

The government’s resolve to stem the flow of boat arrivals led to two policy announcements in late November. First, Bowen asserted that he would begin forcibly deporting Sri Lankan IMAs on the basis that they were “clearly undertaking economic migration” (Bowen, 2012h). Second, he announced that asylum seekers would no longer be able to work upon being released into the community under a bridging visa (Hall, 2012c). The removal of work rights was roundly condemned by all three major media outlets, with the Australian’s Peter van Onselen calling it “a truly horrific policy” that would render them largely unable to take care of themselves (Van Onselen, 2012b; Worst of all worlds, 2012; Grattan, 2012g). Abbott also came under fire for describing boat arrivals as a “peaceful invasion” (Abbott, 2012f) and claiming that “[t]he people who have come illegally to this country need to know that they are breaking our laws [and taking] unfair advantage of our decency” (cited in Flitton, 2012e; Hall, 2012b). Nevertheless, the Coalition continued to use humanitarian arguments in order to justify its hardline policies. When it faced criticism for using the term ‘illegal’ when referring to asylum seekers, Morrison argued that it was enshrined in Article 31 of the Refugee 156

Convention, which prohibits states from imposing penalties on IMAs “on account of their illegal entry or presence” (Abbott & Morrison, 2012).

By the end of 2012, the asylum seeker policies of both major parties had once again begun to converge as the combined effect of agent-driven, structural, institutional and contextual factors had rendered the government’s opposition to the Pacific Solution politically untenable. Once the Coalition’s position that offshore processing in Nauru was both practically necessary and morally justified had been legitimated in both the political and public spheres and subsequently validated in the Houston Report, Gillard had no option but to follow suit by reversing Labor’s 2008 asylum seeker policy changes. There is no question that the continued increases in boat arrivals after August 13 did lead to a marked increase in exclusionary rhetoric from both major parties that directly targeted the normative claims of IMAs. Nevertheless, it is equally apparent that the asylum seeker debate continued to be informed by the humanitarian argument that stronger border protection policies were synonymous with saving the lives of asylum seekers by protecting them from both themselves and people smugglers.

III. The 2013 Federal Election

As Gillard headed into her second election year, she remained steadfast that she had “[t]he personal fortitude to get this job done, no matter how hard it gets” (Gordon & Grattan, 2012). However, the arrival of a record 17,202 asylum seekers in 2012 had also placed her leadership in serious jeopardy (J. Phillips & Spinks, 2013b, p.22). On January 30, Gillard announced that the 2013 Federal Election would be held on September 14, paving the way for a lengthy election campaign (Ireland & Hurst, 2013). The government maintained its pragmatic emphasis on “get[ting] down to [the] business” of implementing all of the Houston Report’s recommendations (Gillard, 2013a), while Abbott continued to promote the necessity of restoring the policies that had been “proven to work” during the Howard era (Wroe, 2013a). Gillard’s appeal to take a rational approach on the issue did little to curb the prevailing sentiment among numerous political commentators that she was a “dead woman walking [because] she has provided no clear direction as to where she is leading the country” (Day, 2013; Waleed, 2013).

During the first quarter of 2013, Labor’s revised asylum seeker policy continued to be criticised by all sides of the political spectrum. In February, the UNCHR lambasted the government for subjecting asylum seekers to “harsh [and] inadequate” conditions on Manus Island and Nauru (UNHCR, 2013; P. Maley, 2013a). When more than 2,400 IMAs arrived in March alone, the Australian asserted that 157 the numbers “have crushed any hope that the government's policy is succeeding in deterring asylum- seekers from risking the dangerous boat journey to Australia” (Stewart, 2013a; Hall, 2013a; Keenan, 2013a). In mid-April, a boat carrying 66 Sri Lankans became the first vessel in 5 years to reach the mainland undetected in what Liberal WA Premier Colin Barnett described as a “serious, unprecedented and unacceptable breach of Australia's border security” (cited in Wilson, Nicholson & Gibbons, 2013; O’Connor, 2013a). The Coalition continued to maintain that its policies were not targeted at boat arrivals, even as it ramped up its alarmist rhetoric. In response to criticisms over a series of billboards that detailed the number of ‘illegal’ boat arrivals since Labor took power, Keenan asserted that “[w]e don’t demonise people seeking asylum [but] we do target people smugglers” (Keenan, 2013b; Perpitch, 2013). However, when the government announced in late April that it would include families in its bridging visa program (O’Connor, 2013b), Morrison decried what he called the “all care no responsibility dumping policy” and insisted that they were “potentially at more risk [in] the community than they arguably are in detention facilities” (Keenan & Morrison, 2013).

By early May, the number of boat arrivals since Gillard had announced the election date reached 8,000 (Failing to protect, 2013). The Coalition’s renewed emphasis on using existential crisis narratives in order to reinforce its position on IMAs was readily evident in Abbott’s statement that “[i]n the war against the people smugglers, this government has just surrendered and frankly it's pathetic that an Australian government should be so supine in the face of this challenge to our nation” (Abbott, Hockey & Briggs, 2013). Nevertheless, the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2012 (Cth) was passed with bipartisan support on May 16 (Commonwealth [HoR], 16 May 2013, p.3549). While David Manne called it a “dark day” for Australia (cited in Wilson, 2013a), O’Connor argued that it constituted “further evidence of [our] commitment to stopping people taking dangerous journeys on unseaworthy vessels to Australia” (O’Connor, 2013c). His response, when combined with the Coalition’s continued reluctance to directly target asylum seekers, demonstrate that both parties continued to draw on humanitarian arguments in order to justify the implementation of increasingly hardline policies during this time. However, these measures did little to alleviate Gillard’s leadership problems as the number of boat arrivals since the beginning of the year reached 9,700 in late May (P. Maley & Stewart, 2013).

The Return of Rudd

By early June, senior Labor MPs had become increasingly concerned that the government was headed for a “thumping defeat” at the 2013 Federal Election as a Newspoll found that it was once again trailing behind the Coalition at 42-58% (Van Onselen, 2013a; Kenny, 2013a; Hawker, 2013, p.48). When reports emerged that convicted Egyptian jihadist Maksoud Abdel had been housed in a low- 158 security detention facility (S. Maher, Nicholson, J. Kelly & Packham, 2013), Keenan asserted that “[w]hen you have 42,000 people arriving here illegally [that] is a weakness that criminals will seek to take advantage of” (Keenan, 2013c; Abbott & Morrison, 2013a). While the Age lambasted the Coalition’s attempt to once again portray IMAs as existential threats (Gordon, 2013a), the Australian’s Dennis Shanahan asserted that Abbott had gotten “exactly what he wanted from the politics of illegal boat arrivals by linking the release of asylum-seekers into the community with national security” (D. Shanahan, 2013a). Nevertheless, Abbott continued to imbue these assertions with humanitarian concerns by arguing that the continued increases in boat arrivals were a “tragedy for our country [and] for the people who will drown at sea while this dreadful trade continues” (Abbott & Morrison, 2013a). These myriad pressure in turn further fuelled speculation that Rudd would once again challenge Gillard for the leadership (Bishop, 2013; Van Onselen, 2013b; Kenny, 2013b). On the subject of asylum seekers, Rudd once again invoked the compassion rhetoric that had defined his first year as Prime Minister by stating that “you don't say no to people who are fleeing persecution” (cited in Rudd praises asylum, 2013; A challenger has more, 2013). His mixed messages on boat arrivals in turn prompted the Australian’s Paul Kelly to surmise that while he “seems trapped between his principles and the problem…he knows that if he returns he must project a decisive break from Gillard's style and priorities” (P. Kelly, 2013).

When Rudd replaced Gillard as Labor leader on June 26, a key question for political analysts was therefore whether or not he would “ramp up his policies on border protection [to] try to garner votes” (Nicholson, 2013a). The Age called on him to “demonstrate compassion for those legally seeking refuge” (Exit Julia Gillard, 2013). In contrast, the Australian continued to urge the government to “end its politically motivated and short-sighted rejection” of the Coalition’s asylum seeker policy on the basis that “[t]he best way to protect the[ir] human rights [is] to prevent them from making these dangerous journeys” (Stopping asylum boats, 2013). The Coalition similarly invoked the drownings argument in order to undermine his position by asserting that “it was his handiwork [that] created [a] revitalised people smuggling trade which has led to hundreds of deaths at sea” (Commonwealth [HoR], 27 June 2013, p.7300; Keenan, 2013d; Abbott, 2013a). However, Rudd soon made his intentions clear when new Foreign Minister Bob Carr announced that the government would pursue a “tougher and more hard-edged assessment on asylum seekers” by ‘screening out’ and deporting IMAs that were deemed to be economic migrants (cited in Crook, Forster & McAdam, 2013; Wroe, 2013b; B. Carr, 2013). Rudd justified this hardline policy shift by declaring that “it's important to always be in the business of being open to adjustments to policy, as circumstances change” (Rudd & Albanese, 2013) 159

Unsurprisingly, Carr’s announcement was vehemently criticised by the UNHCR and refugee advocates (Gordon, 2013b; Nadin, 2013; J. Swan, 2013). Significantly, his assertion that “[t]here is now [a] consensus in Australian politics” that many asylum seekers were not fleeing from persecution appeared to be readily supported in both the political and public spheres (Carr says there is, 2013). Abbott applauded the government for “finally [recognising] that the vast majority of these people are not fair dinkum refugees” (cited in Carr says there is, 2013), while an Age/Nielsen Poll found that 62% of respondents similarly believed that a “significant proportion” of IMAs were economic migrants (The Age Readers’ Poll, 2013). However, while Rudd’s reinstatement had “re-engaged voters” as a Newspoll in mid-July showed that Labor and the Coalition stood at 50-50% on a two- party preferred vote (D. Shanahan, 2013b; Abbott, 2013b), public frustrations over asylum seekers continued to build as the number of boat arrivals since the beginning of the year reached 15,610 (Kenny, 2013c). In response to these ongoing criticisms, Rudd announced that the government would undertake a full review of Australia’s international obligations by examining the effectiveness of the Refugee Convention in addressing contemporary irregular migration movements (Rudd & Trevor, 2013). The statement constituted the culmination of an ongoing process of normative realignment where the domestic meaning-in-use of international asylum seeker norms had once again shifted from a moral obligation to welcome the ‘vulnerable stranger’ to a positive duty to protect the welfare of IMAs by preventing them from making the journey in the first place. Once again, Rudd attempted to justify his position by asserting that "[g]etting that balance right is a tough business [that] will require changes in our policy [and] I make no apology for it” (Wroe & Gordon, 2013).

On July 19, the government’s repudiation of Labor’s 2007 platform on asylum seekers was completed when Rudd announced that any asylum seeker that arrived by boat would have “no chance” of ever being settled in Australia, but instead be processed and resettled in PNG even if they were found to be genuine refugees (Rudd & P. O’Neill, 2013). Significantly, he declared that while “this is a very hard-line decision,” it was also congruent with Australia’s responsibility to “fulfi[l] our legal and compassionate obligations under the Refugee Convention” (Rudd & P. O’Neill, 2013). By promising that PNG would ensure the “proper and humane treatment [of] asylum seekers,” Rudd insisted that the decision fell “within, not outside, the legal framework of the Convention” (Rudd & P. O’Neill, 2013). When new Immigration Minister Tony Burke was asked whether Labor’s policies were now more hardline than the Coalition’s, he maintained that it was not “a left versus right issue” and that “if it does have an impact on the number of people risking their lives [that] is a massive difference” (Burke, 2013a; Clare, 2013b). Rudd further justified his hardline policy by stating that while states were required to treat IMAs “in a humane fashion…no-one is actually ultimately required to provide a final state of residence for a person determined to be a refugee” (Rudd, 2013b). 160

The ‘PNG Solution’ was condemned by both the Greens and refugee advocates, with Milne calling it “a day of shame for Australia” (cited in Nicholson, 2013b; Wilson, 2013b). However, while the three major media outlets were divided over the moral implications of Rudd’s proposal, they also largely accepted its necessity (Sheehan, 2013; PNG: Australia’s dumping ground, 2013). Despite acknowledging that Rudd was “running roughshod over [the] UN convention,” the Australian’s Dennis Shanahan stated that it was “the political circuit breaker Labor has needed for years” (D. Shanahan, 2013c; After years of failure, 2013). The Age’s Mark Kenny similarly called it “a move of considerable diplomatic prowess and audacity [that] effectively gazumps Tony Abbott's hardline policy” (Kenny, 2013d; Gordon, 2013c). Significantly, the Coalition responded by once again highlighting both the practical and humanitarian consequences of Labor’s 2008 policy changes. After dismissing the PNG Solution as another “pre-election fix,” Abbott stated that “[a]lmost 50,000 illegal arrivals later, about 750 boats later, 1,000 plus deaths at sea later, $10 billion in border protection cost blowouts later, Mr Rudd says ‘[I] have a plan’…[w]ell, he doesn’t” (Abbott & Morrison, 2013b; Morrison, 2013b). As the government unveiled a sweeping $2.1 million advertising campaign in order to underscore its “resolve [to] fully implement this policy” (Clare, 2013b; Owens, 2013; Rudd, 2013c), pressure continued to mount on Rudd to announce an election date as Labor’s resurgence in public opinion polls began to stall (D. Shanahan, 2013d).

On July 25, the Coalition unveiled its policy response to the PNG Solution in the form of ‘Operation Sovereign Borders’ (OSB). After declaring that “the crisis on our borders has become a national emergency,” Morrison asserted that an Abbott Government would establish a joint border protection agency taskforce with senior Defence officials, reintroduce boat turnbacks and TPVs, and reduce Australia’s humanitarian intake back to 13,750 (Abbott, Morrison & Nolan, 2013). The announcement of OSB was immediately dismissed by Rudd as another “three word slogan” (Rudd & King, 2013), while Hanson-Young called it a “dressed up version of the same old cruelty” (Hanson, 2013a). Nevertheless, the Australian’s Greg Sheridan captured the zeitgeist of Australia’s contemporaneous socio-political environment when he stated that the Coalition’s hardline approach to boat arrivals was both “ethically just and in policy terms necessary” (Sheridan, 2013). Labor MP Craig Emerson was more direct when he stated that “if trying to stop asylum-seekers drowning at sea makes me a heartless bastard, I can live with that” (Emerson, 2013; Suffer the little children, 2013).

When Rudd announced on August 4 that the 2013 Federal Election would be held on September 7, there was consequently a prevalent view that both leaders were engaged in a “race to the bottom on refugee policies” in order to regain the lead in what would become another closely-fought election (Hanson-Young, 2013b; Bramston, 2013; Gordon, 2013d). Rudd’s attempt to bring his PNG Solution 161 to fruition by expanding the Manus Island facility at a cost of $600 million and formulating a separate resettlement agreement with Nauru (Rudd & Waqa, 2013; Callick, 2013) was immediately matched by the Coalition’s promise that it would similarly expand Nauru by building a ‘tent city’ that could accommodate up to 2,000 people (Wilson, 2013c; Morrison, 2013b). Despite the fact that the government’s assertion that “the message is getting through” to asylum seekers appeared to be validated when the weekly number of boat arrivals dropped sharply from 1,250 to 360 between July 19 and August 8 (cited in Wroe, Hall & I. O’Neill, 2013; PNG solution does not, 2013), a Newspoll found that the Coalition had doubled its lead over Labor to 42-21% as the party that was better equipped to handle the issue (Shanahan, 2013e). By the final week of the election campaign, the perception that Rudd had “neither the will nor the competence to secure our borders” (Abbott & Morrison, 2013c) had become so prevalent that the PNG Solution was perceived as yet another Labor policy that had “failed politically [and] practically” (D. Shanahan, 2013f; Norrington & Bramston, 2013; D. Snow & Harrison, 2013; Morrison, 2013c; P. Maley, 2013b; MacCallum, 2013, p.262).

This section has demonstrated that Rudd’s inability to regain the ascendancy in the asylum seeker debate during the 2013 Federal Election was primarily due to the fact that the dynamics of Australia’s socio-political environment had changed to such an extent that his ‘hardline and humane’ message on boat arrivals no longer resonated with the public in the way that it had six years earlier. In stark contrast to his ability to wedge Howard on the issue during the 2007 Federal Election, it was Rudd who now had to face both the practical and humanitarian consequences of his 2008 policy changes. The continued rise in IMA numbers after August 2012 did lead both major parties to increasingly draw on exclusionary narratives in order to challenge the normative basis of their asylum seekers claims, resulting in a renewed bipartisan consensus that a hardline approach was necessary in order to stem the flow of boat arrivals to Australia. However, it is equally apparent that it was the Coalition’s consistent use of compassion rhetoric that had enabled it to legitimate its ‘Stop the Boats’ policy in both the political and public spheres (after failing to do so during the 2010 Federal Election). The demise of Labor’s 2007 humanitarian platform on asylum seekers was therefore primarily attributable to the fact that it had failed to countervail the domestic perception that the Pacific Solution constituted the most effective mechanism for protecting the welfare of IMAs by preventing them from making the perilous journey by boat to Australia.

Conclusion

On September 7, Tony Abbott was elected as Australia’s 28th Prime Minister after the Coalition won a comprehensive victory by picking up 90 seats (compared to Labor’s 55) in the House of Representatives (Holmes, 2013). In his first press conference as leader, he reassured the Australian 162 people that “I am absolutely determined to stop the boats as quickly as we humanly can” (Abbott, 2013c). By now, Abbott’s public statements on asylum seekers no longer contained the emotive compassion rhetoric that had underpinned the Coalition’s political response on the issue between 2009 and 2013. Nevertheless, this chapter has demonstrated that humanitarian arguments that were centred on the protection of the welfare of IMAs had played a crucial role in enabling Abbott to fortify his hardline ‘Stop the Boats’ strategy by diminishing Labor’s high moral ground on the issue (Walsh, 2014, p.125). By maintaining that Gillard’s failed attempts to implement a ‘regional solution’ to boat arrivals not only risked the lives of IMAs but also contravened Labor’s stated commitment to the Refugee Convention, the Coalition left her with little choice but to reintroduce the Pacific Solution as an integral facet of Australia’s asylum seeker policy. Therefore, Labor’s repudiation of its humanitarian stance on IMAs was not solely attributable to increased boat arrivals and heightened domestic concerns over their presence, but rather to the strategic use of compassion rhetoric for both inclusionary and exclusionary purposes. Chapter 6 will demonstrate that these findings have significant implications for the research agenda that examines how the norm contestation process alters the domestic meaning-in-use of international norms at specific points in time.

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Chapter 6

The Politics of Norm Contestation

Introduction

In the six years since the Coalition implemented the ‘full suite’ of the Howard government’s hardline border protection measures, Labor’s 2008 asylum seeker policy changes have been variously described as a “humane miscalculation” (Manne, 2014), a “costly social experiment” (Herold, Kortt & Dollery, 2016, p.242), and a “fair-weather policy” that was duly abandoned “when tested by rising boat numbers and diminishing public support” (Stats, 2017, p.122). When viewed solely from a public policy perspective, these characterisations are both accurate and warranted. The steady increases in IMAs after 2009, politically damaging maritime incidents, overcrowded immigration detention centres, and an increasingly hostile domestic environment all played a crucial role in prompting both the Rudd and Gillard governments to gradually abandon their staunch opposition to the Pacific Solution. However, Chapters 4 and 5 demonstrated that these factors only provide a partial explanation of why Rudd’s attempt to take Australia’s asylum seeker policy in a more humanitarian direction in 2007 was unable to be sustained. While the Rudd/Gillard era engendered an asylum seeker policy framework that was even more hardline and punitive than Howard’s had been, the rationale that informed it had changed significantly since 2001. In order to ascertain why there was a prevalent view by 2013 that stronger deterrence policies constituted the most ethical response to boat arrivals, it is necessary to gain a comprehensive understanding of how the domestic meaning-in-use of international asylum seeker norms was interpreted and subsequently contested during this period.

Based on these considerations, this chapter will critically assess the key findings in this thesis within the purview of the CNR literature and the conceptual framework that was developed in Chapter 1. Part I will outline the preliminary results from the historical overview in order to put the ensuing discussion into relevant context. I will reiterate that while the bifurcation of Australia’s refugee policy into two separate normative frameworks in 1977 led both the Hawke/Keating and Howard 164 governments to increasingly differentiate between ‘genuine’ offshore refugees and ‘queue jumping’ IMAs that posed a threat to Australia’s ‘way of life,’ domestic interpretations of Australia’s normative obligations have not remained constant. Rather, they have oscillated in response to the actions of specific agents, the shifting norms, malleable structures and developing institutions that comprise Australia’s socially constructed identity, and a constantly evolving socio-political landscape. These variable political interpretations have in turn engendered numerous significant shifts (both positive and negative) in the domestic meaning-in-use of international refugee and asylum seeker norms at specific points in time. These factors in turn provide an explanatory framework for why Rudd was able to successfully advance his normative position in 2007 that Australia had a moral obligation to treat asylum seeker with compassion.

Part 2 will examine the key findings from Chapters 4 and 5 through a CNR lens before critically assessing the specific rhetorical strategies that were used by both Labor and the Coalition in order to legitimate their normative stances on boat arrivals. I will demonstrate that the demise of Labor’s humanitarian platform on IMAs was as much attributable to the specific leadership styles and policy objectives of Rudd, Gillard and Abbott as they were to structural, institutional and broader historical factors. While each leader faced significant domestic barriers that impeded their ability to implement and/or maintain their respective asylum seeker policies, it was Abbott’s willingness to make his ‘Stop the Boats’ policy more congruent with Australia’s contemporaneous socio-political environment that enabled the Coalition to gain the upper hand in the asylum seeker debate. After appropriating Rudd’s rearticulated binary between ‘vulnerable’ IMAs and ‘criminal’ people smugglers, Abbott directly blamed the Rudd government’s 2008 policy changes for encouraging asylum seekers to risk their lives at sea. In the process, he not only de-legitimised both the moral and practical foundations of Labor’s asylum seeker policy, but also paved the way for the reintroduction of the Pacific Solution by normalising the ‘drownings argument’ in both the political and public spheres. This case study in turn demonstrates that the domestic contestation of international asylum seeker norms did not entail a deliberative process where relevant stakeholders were ‘socialised’ into accepting both their validity and applicability, but rather constituted a clear case of rhetorical coercion.

These findings in turn substantiate the central contention of this thesis that the Rudd Government’s rearticulation of the domestic meaning-in-use of international asylum seeker norms had the effect of engendering a new ‘post-implementation phase life-cycle’ process where the new meanings were contested and subsequently normalised in both political and public spheres. As Part III will demonstrate, these developments also form part of a broader international diffusion process where the use of humanitarian language for exclusionary purposes has become increasingly apparent in other 165 jurisdictions around the world. In order to verify this hypothesis, I will examine how the European Union and its border protection agency, Frontex, increasingly used humanitarian language in order to legitimate its surveillance and interdiction operations by arguing that they were necessary in order to ‘save lives’ during the 2015-16 European Migrant Crisis.

I. Australia’s Variable Historical Approach to Refugees and Asylum Seekers

On the surface, the historical evolution of Australia’s refugee policy appears to conform quite readily with the formative phases of both the Life-Cycle and Spiral models of normative change. In 1945, When Arthur Calwell expanded Australia’s racially homogenous immigration program after WWII, the inclusion of non-British immigrants and the efforts of domestic and transnational advocacy networks to sponsor Jewish refugees altered the composition of Australia’s cultural demographic. Despite its initial reticence in supporting the formulation of the Refugee Convention’s key provisions, Australia’s commitment as an early adopter was evidenced by the fact that its signature facilitated its enactment. As domestic pressure to dismantle the WAP increased during the 1950s and 1960s, the Menzies Government not only became more vocal about Australia’s humanitarian record on refugees, but also sought to enhance its international reputation by matching the contributions of other states. By 1973, Australia had ratified both the Refugee Convention and Addition Protocol as it began to embrace a more multicultural identity. When the Vietnam War and subsequent exodus of Indochinese refugees caused the issue to become a central focus of domestic debate, the Fraser Government not only declared that Australia had a moral obligation to assist the refugees, but also accepted thousands of boat arrivals despite its initial reluctance. The introduction of the Humanitarian Program in 1977 subsequently incorporated Australia’s commitment to resettle specific categories of offshore refugees into its domestic policy framework.

Conversely, the increasingly restrictive asylum seeker policies of the Hawke/Keating and Howard governments appear to be a relatively straightforward case of norm rejection as policy makers became increasingly vocal in stating that Australia’s international obligations under the Refugee Convention and associated human rights instruments do not apply to IMAs. On the one hand, the principle that Australia had a positive obligation to resettle a pre-determined annual quota of offshore refugees had arguably progressed to the ‘taken-for-granted’ stage by 1989. However, when the second ‘wave’ of IMAs began to arrive, the ad hoc and largely discretionary nature of previous responses was replaced by a codified system that classified boat arrivals as ‘illegal entrants’ and ‘unlawful non-citizens’ and significantly curtailed their ability to claim refugee status. The introduction of mandatory detention in 1992 and subsequently restrictions on judicial avenues of appeal were accompanied by a marked 166 increase in exclusionary rhetoric that characterised asylum seekers as economic opportunists, criminal deviants and ‘queue jumpers.’ By the time that Howard introduced the Pacific Solution in 2001, Australia’s domestic framework on asylum seekers contained very few of the normative protections that had been accorded under international law.

The historical trajectory of Australia’s refugee and asylum seeker policies suggests that international asylum seeker norms have become intractably contested in Australia to the point where their further domestic implementation remains largely out of reach. However, this case study has demonstrated that the scope for enhancing Australia’s compliance with these norms does exist, provided that the specific contextual matrix within which debates over their domestic applicability are conducted are conducive to facilitating such a shift. This section will demonstrate that Australia’s variable political response to refugees and asylum seekers since 1945 (and the numerous normative shifts that followed) can be attributable to three main factors. These include (1) the extent to which political elites link their normative positions to an overarching political objective; (2) their level of congruence with the prevailing socio-political climate; and (3) the degree to which these normative positions are perceived to be legitimate in both the political and public spheres.

The Importance of an Overarching Political Objective

The first preliminary finding that was identified in Chapter 3 was that the ability of political elites to successfully advance their normative stances on refugees and asylum seekers depended on the extent to which these positions were linked to a specific political objective. In the decades before the international normative regimes on refugees and asylum seekers had been established, Australia had maintained strict controls over the entry and presence of non-British aliens in its sovereign territory. In 1945, Arthur Calwell’s decision to expand Australia’s immigration program to include non-British European refugees was informed by both his own personal disdain for Australia’s Anglo-centric policy framework and the need to strengthen its domestic economy by increasing its labour force. However, it was also driven by the overarching imperative to strengthen Australia’s defences against perceived external threats by rapidly expanding its population. Ironically, it was these threat perceptions that paved the way for the rights of refugees to be more readily recognised at the domestic level by diversifying the composition of Australia’s social demographic.

These factors in turn reinforce the central contention in Chapter 3 that Australia’s variable political response to refugees and asylum seekers is primarily attributable to the mutually constitutive interactions of agents, structures and relevant contexts. During the 1950s, the growing recognition 167 that the WAP no longer reflected contemporaneous standards of normative appropriateness prompted the Menzies government to ratify the Refugee Convention, abolish the racially discriminatory dictation test, and become more vocal about Australia’s humanitarian record on refugees. However, Menzies’s decision to offer political asylum to the Petrovs and to accept refugees from various Communist bloc countries was also informed by his broader political strategy of capitalising on heightened Cold War tensions in order to strengthen his leadership position. The introduction of Australia’s Humanitarian Program in 1977 is similarly attributable to the combined effect of Malcolm Fraser’s own moral compass, his support of Australia’s multicultural identity, and the government’s foreign policy objective of neutralising the Communist threat in the Asia-Pacific. By portraying them as the “wretched victims of communism,” Fraser (1979b) linked his normative stance on refugees to the Liberal Party’s broader political objective of taking a more interventionist stance in the Vietnam War.

The importance of an overarching political objective is also evident in Australia’s increasingly hostile response to boat arrivals. In 1989, the end of the Cold War and ongoing political instability in Southeast Asia led to a significant increase in irregular migration movements. When the Hawke government was faced with a second ‘wave’ of Indochinese boat arrivals, his ‘hard headed’ approach to foreign policy was immediately made apparent when he dismissed their claims by calling them ‘queue jumpers’ and economic opportunists. Hawke’s compassionate response to Chinese students and dissidents in the aftermath of the Tiananmen Square massacre similarly reflected both his own personal horror at the incident and the broader geopolitical complexities of Australia’s increased engagement in the Asia-Pacific region. The Keating government’s introduction of mandatory detention and restricted avenues of appeal constituted a direct attempt to curtail the perceived judicial activism of the High Court after it declared that Australia’s ratification of the Refugee Convention and associated human rights instruments had domestic implications for its treatment of boat arrivals. Finally, the Pacific Solution was the cumulative result of John Howard’s wariness over Australia’s multicultural identity, his government’s objective of advancing the ‘national interest’ by securing Australia’s borders, and a series of closely aligned domestic and international crises that heightened public anxieties over boat arrivals. In each case, the ability of political elites to either defend or challenge the domestic applicability of international asylum seeker norms at least partially depended on the extent to which their respective stances reflected their overarching political objectives.

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Their Congruence with the Prevailing Socio-Political Climate

Second, their political objectives also need to be compatible with the contemporaneous socio-political climate. This notion appears to be consistent with Finnemore and Sikkink’s argument that international norms must “fit or be congruent with historically formed ideologies or the structure of political discourse of a nation” (Finnemore & Sikkink, 2001, p.407). However, the fact that neither of these factors constitute fixed equilibria also reinforces the central contention of CNR scholars that political elites have to adapt to a constantly evolving socio-political landscape in order to mitigate the risk having their policies rejected by a domestic audience. This in turn adds another layer of complexity to the prevalent view that Australia’s hardline response to boat arrivals is primarily attributable to long-standing domestic fears over the threatening ‘Other’ that have remained relatively fixed over time. Just as political elites have played a decisive role in increasing Australia’s compliance with international refugee norms at specific points in its recent history, the current of public opinion has not remained intractably negative over the last seven decades, but has at times played a crucial role in prompting them to take a more compassionate stance on refugees and asylum seekers.

This point is also aptly demonstrated in Chapter 3. In the late 1940s, Calwell’s decision to curtail the number of Jewish refugees that could enter Australia was arguably prompted by both the hostile domestic response to their presence and the perception that these actions would keep Australia’s socio-cultural identity intact. Nevertheless, the severe public backlash that followed his unapologetically racist attitude towards Gamboa and O’Keefe also revealed a growing public unease with the discriminatory WAP. Similarly, it was public pressure that had compelled Menzies to offer Petrova political asylum alongside her husband in 1954, while his continued reluctance to allow non- European refugees to remain was also severely criticised as refugee advocates maintained that his views no longer reflected the views of the Australian people. In contrast, the success of Malcolm Fraser’s plan to resettle thousands of Indo-Chinese refugees was at least partially attributable to the presence of a more amenable socio-political environment within which his appeals could be more effectively promulgated. By maintaining that they were compatible with Australia’s progressive multicultural identity, Fraser’s argument that it owed protection obligations to the refugees resonated with the public despite heightened domestic anxieties over their presence. When these perceptions once again began to shift in the 1990s, both the Hawke/Keating and Howard governments harnessed the contemporaneous current of negative public opinion in order to justify their hardline stances on IMAs. 169

The Contestation-Legitimation Nexus in Context

Finally, the ability of a political elite to successfully advance their normative positions on a specific issue also depends on the extent to which they are able to legitimate it in both the political and public spheres. Chapter 3 further demonstrates that this legitimation process was rarely deliberative in nature, but was rather centred on diminishing the validity of opposing viewpoints. Significantly, political elites opted to draw on both exclusionary and humanitarian arguments in order to strengthen their respective political agendas on refugees and asylum seekers. In 1954, Menzies harnessed heightened anti-communist sentiments in order to neutralise the effectiveness of his political opponent Evatt’s claim that he had timed the defection of Petrov to coincide with the Federal Election. As fears over the looming threat of Communism peaked during the Vietnam War, Whitlam’s reluctance to assist Indochinese refugees fleeing from the Viet Minh insurgency during the fall of Saigon had significantly tarnished his political reputation. This enabled the then-opposition leader Malcolm Fraser to capitalise on his inaction by arguing that Australia’s involvement in Vietnam had imbued it with a moral obligation to resettle the victims of the conflict.

The second ‘wave’ of boat arrivals in 1989 led to a bipartisan consensus that stronger border protection measures were both necessary and justified in order to prevent IMAs from reaching Australia’s shores. Nevertheless, the domestic applicability of international asylum seeker norms continued to be contested during this period as political elites challenged the normative positions of their opponents. When Hawke was criticised by the Opposition and some media outlets for giving preferential treatment to Chinese students and dissidents by allowing them stay in Australia after the Tiananmen Square massacre, he maintained that their claims were more legitimate than those of Cambodian boat arrivals because the latter were primarily economic migrants. As public anxieties over irregular migration peaked in the wake of the Tampa Crisis and the 9/11 attacks, the Howard government was able to justify the introduction of the Pacific Solution despite Labor’s initial reluctance by maintaining that boat arrivals could potentially harbour Islamic extremists. This strategy not only enabled him to ward off domestic criticism that it violated the human rights of IMAs, but also diminished the validity of Beazley’s increasingly inconsistent stance on the issue. While the ‘Children Overboard Affair’ had damaged the government’s political credibility, Beazley’s attempt to cast the blame for the SIEV X disaster on the government’s inaction backfired due to the prevalent view that Australia had a sovereign right to protect its borders from perceived external threats.

The historical development of Australia’s refugee and asylum seeker policies further affirms the central contention of CNR scholars that norms are “both structuring and socially constructed through 170 interaction in a context” (Wiener, 2014, p.27). Chapter 3 demonstrated that while exclusionary narratives have played an important role in influencing the trajectory of the asylum seeker debate since 1980, they only constitute one of a wide range of rhetorical strategies that have been advanced by political elites in order to contest the issue. Just as domestic interpretations of what constitutes legitimate behaviour have not remained static over the last seven decades, the domestic meaning-in- use of international refugee and asylum seeker norms has also shifted and evolved over time. This in turn strengthens the argument that since normative change is predicated on the mutually constitutive interactions of agents, structures and relevant contexts, the failure of political elites to convince a domestic audience that their normative stances are legitimate provides a window of opportunity for their opponents to enable their competing viewpoints to gain traction. As the next section will demonstrate, the demise of Labor’s 2007 humanitarian platform on asylum seekers was primarily attributable to the inability of both Rudd and Gillard to maintain their position that their respective policy initiatives would protect both Australia’s borders and the welfare of IMAs.

II. The Politics of Compassion

Chapter 2 delineated that a significant number of scholars agree that political elites have consistently sought to legitimate their hardline asylum seeker policies by characterising IMAs as the threatening ‘Other’ that poses an existential threat to Australia’s territorial integrity, national security and social cohesion. This prevalent view was subsequently affirmed in Chapter 3, which demonstrated that Australia’s asylum seeker policy between 1980 and 2006 was underpinned by a relatively consistent bipartisan consensus that boat arrivals needed to be deterred from reaching its shores. Nevertheless, Chapters 4 and 5 elucidated that humanitarian arguments not only played a crucial role in shaping the normative parameters of the asylum seeker debate during the Rudd/Gillard era, but that the strategic use of compassion rhetoric was instrumental in both facilitating and subsequently diminishing the normative foundations of Labor’s 2007 policy platform on IMAs. This in turn affirms that the domestic meaning-in-use of international refugee and asylum seeker norms in Australia is both variable and context-specific

The Dynamic Interactions of Agents, Structures and Contexts

In Chapter 1, I discussed how the emphasis by first-generation constructivists on international organisations, transnational advocacy networks and civil society organisations as the primary arbiters of normative change largely ignored the fact that state leaders can also play an entrepreneurial role by acting as a “normative champion” for a specific human rights issue (Davies and True, 2017, p.702). Based on these considerations, I argue that Australia’s normative shift on asylum seekers in 2007 171 would most likely not have come to fruition without the initiative of Labor Opposition leader Kevin Rudd. In 2006, Rudd’s normative position on IMAs was, in his own words, not only borne from his own Christian belief that politicians should “always take the side of the marginalised, the vulnerable and the oppressed” (cited in Stats, 2017, p.101), but also from his broader political conviction that leaders had a moral duty to “shape our view of what constitutes appropriate policy for the community, the nation and the world” (Rudd, 2006a, p.29). Rudd’s leadership style was therefore transformational in nature in that he sought to portray himself as a policy entrepreneur that wanted Australia to take a more progressive stance on climate change and asylum seekers (Hartcher, 2011).

In addition to being informed by his own unique policy preferences, Rudd’s utilisation of moral evaluation as his primary legitimation strategy was directly aimed at neutralising the effectiveness of Howard’s emphasis on authorisation and mythopoesis in order to justify his hardline asylum seeker policies. By 2007, the notion that asylum seekers posed an existential threat to Australia’s territorial sovereignty, national security and value systems no longer resonated with the public in the same way that it had in the aftermath of the Tampa Crisis and 9/11. The combined effect of low IMA numbers and increased domestic dissatisfaction with the adverse humanitarian consequences of the Pacific Solution meant that exclusionary rhetoric that was centered on negative representations of IMAs as economic opportunists, criminal deviants and ‘queue jumpers’ was no longer deemed to be congruent with Australia’s contemporaneous socio-political environment. However, Rudd’s belief that he had been given a “mandate” (cited in Shand, 2012) by the Australian people to cease offshore processing in Nauru and Manus Island was also accompanied by a keen awareness that a complete repudiation of Australia’s border protection regime was politically unsustainable. His ‘me-tooism’ with humanitarian undertones consequently enabled him to legitimate his dual political message of economic conservatism and social progressiveness while also fortifying his claim that the Pacific Solution was both fiscally irresponsible and morally reprehensible. In the process, Rudd was able to turn Howard’s erstwhile political strengths into crippling weaknesses while simultaneously harnessing the growing public perception that the Coalition was ill-equipped to lead Australia into the 21st century.

Rudd’s attempt to reconcile Australia’s international obligations under the Refugee Convention and associated human rights instruments with the policy norms that underpinned its domestic asylum seeker policy framework culminated in his promise that Labor’s asylum seeker policy would be both hardline and humane. In order to legitimate his 2008 policy changes, Rudd (re)articulated the domestic meaning-in-use of international asylum seeker norms by creating a new binary between ‘criminal’ people smugglers and ‘vulnerable’ IMAs. By deflecting the use of exclusionary rhetoric 172 onto another target, Rudd provided a justificatory basis for the continued implementation of mandatory detention and offshore processing while characterising asylum seekers as worthy objects of compassion that needed to be protected from harm (Peterie, 2017, p.358). However, when the SIEV 36 explosion and Jaya Lestari and Oceanic Viking stand-offs threatened to undermine his political credibility in late 2009, Rudd not only called people-smugglers as the ‘scum of the earth,’ but also insisted that he made ‘no apologies’ for taking a hardline stance against ‘illegal immigration’ (cited in Rodgers, 2009). These statements, when combined with his inability to stem the flow of boat arrivals and maintain control over Australia’s immigration detention system, significantly diminished his political credibility.

These considerations appear to support the prevalent view within contemporary analyses of Australia’s asylum seeker policy that Rudd discarded his humanitarian concern for the ‘vulnerable stranger’ as soon as the combined effect of increased boat arrivals and a hostile domestic sphere had rendered it politically untenable. However, one of the key findings in Chapter 4 was that it was Rudd’s failure to keep both his actions and rhetoric on asylum seekers within the rearticulated normative parameters that he had set in 2007 that contributed to his political demise by fuelling the domestic perception that Labor’s asylum seeker policy was both irresponsible and inhumane. By ignoring the pleas of the Jaya Lestari passengers, keeping children in immigration detention, and freezing the applications of Afghan and Sri Lankan asylum seekers, Rudd directly contravened his erstwhile position that the scope of Australia’s protection obligations under the Refugee Convention extended to asylum seekers. This in turn prompted both conservative media commentators and refugee advocates to call him a moral hypocrite for failing to maintain his pledge to protect Australia’s borders while treating asylum seekers with compassion. By mid-2010, this perception had become so prevalent that it was a contributing factor in Labor’s decision to oust him from the leadership.

In contrast to Rudd’s transformational leadership style, Gillard’s approach to policy-making was more akin to those of a transactional leader “who was committed to completing the business left unfinished” (Curtin, 2015, p.195). While her pragmatic persona constituted a crucial component of her political identity, it was also largely borne out of necessity. From the outset, Gillard faced a number of legitimacy deficits arising from her predecessor’s perceived policy failures on asylum seekers, climate change and the Mining Tax, and the manner in which she had acquired the leadership. As a result, she immediately distanced herself from Rudd’s compassion rhetoric by declaring that she sympathised with Australians who felt a “sense of anxiety” over boat arrivals (Gillard & W. Swan, 2010a). In addition to alleviating domestic concerns over Labor’s ability to stem the flow of IMAs, her ‘regional solution’ to boat arrivals constituted a targeted political strategy to make her asylum 173 seeker policy appear more measured and rational in comparison. Throughout her tenure as Prime Minister, Gillard’s various attempts to bring her policy initiatives to fruition were frequently undermined by structural and ideological constraints in the form of a hung parliament, judicial interventions and an increasingly hostile public sphere. Nevertheless, it was her failure to ensure that her government’s policy initiatives complied with her own stipulation that destination countries needed to be signatories to the Refugee Convention that strengthened the domestic perception that Labor’s asylum seeker policies were both unfeasible and unethical (Bourgault du Coudray, 2016, p.278; Herold, Kortt & Dollery, 2016, p.238; Mulligan, 2010, p.17)

Gillard’s first policy initiative, the so-called ‘Timor Solution,’ was consequently widely derided for being both ill-conceived and irresponsible. In addition to being criticised for its premature announcement and lack of proper consultation with the East Timorese government, refugee advocates argued that she was attempting to outsource Australia’s international obligations to countries that were ill-equipped to accommodate them (Manne, 2013: 24). Her steadfast refusal to reintroduce offshore processing on Nauru in the wake of the Christmas Island disaster also strengthened the perception that Labor’s asylum seeker policies were actively encouraging IMAs to risk their lives at sea. When she attempted to enter into a burden-sharing arrangement with Malaysia by formulating a people swap deal in mid-2011, she was lambasted by all sides of the political spectrum for sending IMAs to a non-signatory country where human rights protections could not be guaranteed. As a result, Gillard’s promise that she would “smash the people smuggling business model” held little credence as boat arrivals (and deaths at sea) continued to increase (Gillard, Swan, Conroy & Wong, 2010). Her final policy initiative, the Expert Panel on Asylum Seekers, aimed to legitimise her regional solution by imbuing it with additional authority from independent experts. However, it had the opposite effect by validating the Coalition’s position that the Pacific Solution constituted the most appropriate mechanism for deterring asylum seekers from risking their lives at sea. These factors in turn played a crucial role in further weakening her already tenuous grasp on the leadership.

This summary of the asylum seeker policies of both Kevin Rudd and Julia Gillard further affirms that the norm contestation process is driven by the mutually constitutive interactions of agents, structures, and relevant contexts (Wiener, 2014, p.viii). In Chapter 4, I demonstrated that Australia’s normative shift on asylum seekers in 2007 was facilitated by a confluence of interrelated factors. These included Rudd’s Christian impulse to help the “vulnerable stranger,” his broader policy weltanschauung of turning Australia into a global norm promoter, and the presence of a more amenable socio-political environment as public dissatisfaction with Howard’s hardline asylum seeker policy had grown in the leadup to the 2007 Federal Election (Rudd, 2006a; Rudd, 2007; Van Onselen & Senior, 2007, pp.vi- 174 x). Similarly, Rudd’s subsequent retreat from his humanitarian concern for the ‘vulnerable stranger’ was equally attributable to his failure to fulfil both elements of his ‘hardline and humane’ policy, structural factors including increased boat arrivals and an overburdened immigration detention network, and context-specific events such as the Jaya Lestari and Oceanic Viking stand-offs. Chapter 5 further pointed out that while Gillard faced far more onerous domestic constraints than Rudd had, Labor’s policy reversals and eventual reintroduction of the Pacific Solution were as much attributable to the normative consequences of her ‘regional solution’ to boat arrivals as they were to increased IMA numbers and a hostile public sphere.

The inability of both leaders to provide a justificatory basis for their respective asylum seeker policies in turn provided the Coalition with a window of opportunity to advance its own deterrence-based message on boat arrivals. However, it was not until it began to appropriate Rudd’s compassion rhetoric for its own strategic purposes that it was able to dominate the asylum seeker debate. As the next section will demonstrate, competing interpretations of morality and normative responsibility played a crucial role in informing the rhetorical strategies that political elites used in order to legitimate their normative stances on boat arrivals.

The Politics of Rhetorical Coercion

The Coalition’s comprehensive defeat at the 2007 Federal Election and the Rudd government’s strong domestic popularity during its first year in office ensured that Labor’s 2008 policy changes met little political resistance. After IMA numbers once again began to increase in 2009, Opposition leader Malcolm Turnbull’s over-reliance on alarmist rhetoric and subsequent failure to challenge the normative basis of Rudd’s ‘hardline and humane’ policy had similarly rendered his attacks on the government largely ineffective. However, this changed when Tony Abbott took over as Coalition leader in December 2009. A staunch conservative who strongly favoured reintroducing the Pacific Solution, Abbott had initially opted to emulate Howard’s strategy of justifying his hardline stance on asylum seekers by characterising them as existential threats (McDonald, 2011, p.287). When his deterrence-based ‘Stop the Boats’ campaign failed to translate into political gains during the 2010 Federal Election, both Abbott and Morrison began to recalibrate the Coalition’s response in order to make it more congruent with contemporaneous standards of normative appropriateness.

The Jaya Lestari 5 and Oceanic Viking stand-offs, overcrowding and detention of children on Christmas Island, and subsequent freeze on Sri Lankan and Afghan asylum applications all provided the Coalition with numerous opportunities to disseminate its political message that Labor’s policies were “hypocritical, misleading and inhumane” (Commonwealth [HoR], 26 October 2009, p.11049). 175

Nevertheless, it was the ‘drownings argument’ that enabled Abbott to regain control over the norm contestation process. By drawing direct parallels between recent increases in asylum seeker drownings at sea and Labor’s (partial) dismantling of the Pacific Solution, he placed the moral consequences of Rudd’s policy changes firmly on his shoulders. This enabled Abbott to strengthen the Coalition’s position that stronger border protection policies were necessary in order to “save lives” (cited in Coalition attacks PM, 2009; Abbott, 2009b). The drownings argument in turn played a pivotal role in enabling Abbott to countervail the structural constraints that arose from his inability to gain the leadership after the closely fought 2010 Federal Election.

When the Christmas Island disaster put the fatal consequences of the people smuggling trade on stark display, Abbott seized on the tragedy in order to reinforce his argument that “as long as the boats keep coming, the risk of disaster remains” (Abbott, 2010m). The Coalition’s strategic use of compassion rhetoric became even more pronounced when Gillard announced the Malaysia Solution. Significantly, both Abbott and Morrison appropriated the parable of the Good Samaritan for their own purposes by asserting that the people swap deal directly contravened Australia’s international obligations to asylum seekers by putting them in harm’s way. While Morrison compared them to cattle being exported for slaughter (Katharine Murphy & Gordon, 2011), Abbott pointed to Malaysia’s poor human rights record in order to strengthen his argument that Nauru was a more appropriate destination because IMAs would get “Australian style human rights” there (Commonwealth [HoR], 26 May 2011, p.4839). When the High Court subsequently invalidated the agreement, it further strengthened the Coalition’s position that Gillard asylum seeker policies were neither pragmatic nor humane (Bolt, 2011).

As the number of IMAs (and drownings at sea) continued to increase in the wake of the decision, the Coalition became increasingly prolific in arguing that Australia had a positive duty to prevent them from undertaking the perilous journey to Australia by boat by reintroducing the Pacific Solution. At the same time, it began to challenge the domestic applicability of the Refugee Convention by arguing that it actively encouraged people smugglers to risk the lives of vulnerable IMAs while leaving the ‘forgotten’ refugees who were languishing in offshore camps in limbo (L. Wilson & Maley, 2012). By remaining implacably opposed to the Malaysia Solution on human rights grounds, Abbott further diminished the moral foundation of Labor’s asylum seeker policy. When Gillard eventually pursued the only avenue that was left available to her by commissioning the Expert Panel on Asylum Seekers, the Houston Report’s recommendation that offshore processing should be resumed on Nauru and Manus Island further vindicated the Coalition’s position that these hardline measures were necessary in order to avoid more “trauma, tragedy and cost” (Abbott, 2012c; Stewart, 2012a). The re-emergence 176 of a bipartisan consensus that the Pacific Solution constituted a legitimate response to boat arrivals was in turn accompanied by a marked resurgence in exclusionary rhetoric as both major parties once again began to publicly characterise irregular migration as a threat to the nation.

In addition to neutralising the normative foundation of Labor’s humanitarian platform on IMAs, the drownings argument also diminished the effectiveness of alternative viewpoints. In 2007, refugee advocates had played a key role in creating a more amenable socio-political environment within which Rudd was able to promulgate his views on the ‘vulnerable stranger.’ However, as the number of boat arrivals (and deaths at sea) began to rise after 2009, the argument that a compassionate approach necessitated a significant increase in the refugee intake and the creation of ‘safer pathways’ for IMAs became increasingly difficult to maintain. In the months following the Christmas Island disaster, a number of prominent refugee advocates including Robert Manne, Sev Ozdowski, and Frank Brennan publicly repudiated their erstwhile opposition to the Pacific Solution on the basis that it had deterred IMAs from risking their lives at sea. When compared to the Malaysia Solution, they further argued that it was “easily the lesser of two evils” Ozdowski, 2011; Karvelas, 2011; Maley, 2011b). These developments in turn enabled the Coalition to mitigate the crippling effects of the Labor-Greens alliance. While the Greens’ dismay over the Malaysia Solution had had the somewhat paradoxical effect of aligning their moral objections with those of the Coalition, their ongoing refusal to accept offshore processing as a viable solution to preventing IMAs from risking their lives at sea made their appeal for more open borders seem morally reprehensible in comparison (Moral dimension of, 2011; Franklin, 2011; Manne, 2011).

The above analysis demonstrates that the norm contestation process is as much informed by discursive strategies of rhetorical coercion as it is by persuasion and strategic bargaining. Moreover, it affirms that the success of a specific rhetorical strategy depends on the extent to which an agent can link their normative position to a policy objective that is also congruent with the contemporaneous socio-political climate. By using a combination of moral and rational arguments in order to demonstrate that Labor’s asylum seeker policy was both impractical and inhumane, the Coalition wedged both Rudd and Gillard into a rhetorical corner from which they could not extricate themselves. The effectiveness of this strategy was further evidenced by the fact that when the Gillard government attempted to emulate the Coalition’s tactic of blaming each new boat arrival on its refusal to break the political deadlock on offshore processing, it failed to resonate with the Australian people (Bowen & Clare, 2011). In contrast, the drownings argument was appropriated by both media commentators and the public (see below) despite widespread misgivings over whether Abbott’s expressed concern for the welfare of IMAs was genuine. By formulating a challenge to Labor’s policy 177 changes that fell within the rearticulated normative parameters that Rudd had set in 2007, the Coalition was able to legitimise its position on IMAs in both the political and public spheres.

The Normalisation of the Drownings Argument in Public Discourse

The legitimation of the ‘drownings argument’ in political discourse in turn had a reciprocal effect on how the asylum seeker issue was debated in the public sphere. In 2007, the euphoria that had greeted Rudd’s election victory in 2007 had been accompanied by a largely positive media response. However, this situation quickly changed when boat arrivals once again began to increase in 2009. While some commentators reverted to using hostile rhetoric that characterised IMAs as ‘illegals’ and ‘economic migrants,’ (Maley, Owen & Guest, 2009; Is Evans ready, 2009), the most common refrain was that the legitimacy of Rudd’s position on asylum seekers was predicated on his ability to protect Australia’s borders while treating asylum seekers with compassion. When it became increasingly apparent that neither objective was being achieved, all three major media outlets began to criticise Rudd for failing to acknowledge the “national consensus on the need for a humanitarian but accountable policy that respects our borders” (Coorey & Narushima, 2010; Memo to the leader, 2010; Grattan, 2010c). Significantly, the prevalent view among numerous media commentators that Abbott’s concern for the welfare of IMAs was not sincere did not preclude them from reiterating the Coalition’s argument that the Pacific Solution should be reintroduced in order to “stop people risking their lives at sea” (Flitton, 2012a; Time to show leadership, 2012; Boat dilemma needs honesty, 2012).

A similar pattern can be discerned in public opinion polls on the issue. On the one hand, the Monash University’s 2012 Mapping Social Cohesion report found that there was a “consistent negative trend” regarding the Rudd/Gillard government’s handling of the issue (Markus, 2012). However, a survey of some of the more detailed questionnaires also reveals that the given reasons behind these negative responses were more nuanced than they appear (Monash University, n.d., Inventory of Australian Public Opinion Surveys: Asylum). For example, the 2011 Lowy Institute poll (taken after the Christmas Island disaster but before the Malaysia Solution was announced) found that while 72% of respondents were ‘concerned’ about asylum seekers arriving by boat, an overwhelming 92% of those respondents stated that their concern was based on the possibility that the boat journey could cause injuries or deaths (Lowy Institute, 2011, pp.13-14). An Essential Report on July 14 similarly found that 58% of respondents felt that it was ‘very important’ that the Malaysia Solution had to guarantee that IMAs would not be subjected to cruel or inhumane treatment, while 41% felt that all countries involved had to be signatories to the Refugee Convention (Essential Report, 2011). While these results could easily be dismissed as an aberration, they also constitute a direct reflection of the public’s 178 responsiveness to the normative position that was deemed to be the most legitimate at that specific point in time. In this instance, it was the Coalition’s consistent refrain that Labor’s policies actively harmed the welfare of asylum seekers that appeared to resonate the most with the public.

This point is further affirmed by a survey of public commentary on a series of online media reports from the Guardian, Crikey, the New Matilda and the Herald Sun in the immediate aftermath of the Christmas Island disaster. Within the comments section on each of these articles, hostile and exclusionary rhetoric to the effect that “[t]hese people PAY to come here, so that they can jump the queue” (Cowie, 2010) and that “[a]ll countries have the right to determine who comes to their shores” (Flanagan, 2010) were readily discernible. Nevertheless, there was also a distinct current of opinion that “[t]he Pacific Solution was more humane than the current policy [because it] stopped the boats [and] therefore stopped the deaths at sea” (Cowie, 2010; Gillard must yield over Nauru, 2010). The view that both the Rudd and Gillard governments were directly responsible for “encouraging people [to] take this risky course of travelling to Australia” (Kerry Murphy, 2010) was also readily apparent in these responses. Once again, these examples demonstrate that while public responses to periodic increases in boat arrivals have been underpinned by a relatively consistent pattern of negativity since 1989, the specific rationales that have informed them have differed significantly. As the next section will demonstrate, these factors have significant implications for how the domestic implementation phase of the normative life-cycle is interpreted and conceptualised.

The Advent of a New Normative ‘Life-Cycle’ Process

Based on these considerations, the most significant overall finding is that while Australia’s political response to IMAs has generally been portrayed as a clear case of outright norm rejection, the Rudd government’s asylum seeker policy changes had the effect of creating a new post-implementation phase ‘life-cycle’ process. By rearticulating the domestic meaning-in-use of international asylum seeker norms in 2007, Rudd altered the parameters of the asylum seeker debate. In addition to spurring renewed debate over the scope of Australia’s treaty-based international obligations to asylum seekers, the validity of Rudd’s new binary between ‘vulnerable’ IMAs and ‘criminal’ people smugglers was subjected to sustained scrutiny until a dominant political consensus was reached that deterrence-based measures were crucial in order to protect asylum seekers from harm. The drownings argument consequently underwent a ‘socialisation’ process where it became an increasingly normalised aspect of political and public debates on the issue. In addition, it also had the broader effect of marginalising alternative viewpoints by diminishing the moral thrust of arguments that called for a more ‘open borders’ approach to policy formulation.

179

There is no question that this process resulted in the wholesale re-emergence of a bipartisan consensus that Australia needed to take a hardline stance on IMAs. Nevertheless, more recent developments also suggest that political elites have continued to invoke the drownings argument in order to justify the implementation of hardline asylum seeker policies. When OSB was implemented on 18 September 2013, its stated purpose was to “protec[t] Australia’s borders, comba[t] people smuggling in our region, and preven[t] people from risking their lives at sea [emphasis added]” (Department of Home Affairs, Operation Sovereign Borders, n.d.). In October 2015, a recently ousted Abbott delivered a speech in London where he urged European leaders to adopt Australia’s border protection policies in order to formulate a more effective response to the European Migrant Crisis.53 After warning them against engaging in “misguided altruism,” Abbott declared that “stopping the boats and restoring border security is the only truly compassionate thing to do” (Abbott, 2015; Clarke, 2015). The 2017 Foreign Policy White Paper similarly outlined that the government’s ongoing efforts to combat people smuggling and irregular migration were “essential to save lives, ensure the integrity of our border and maintain public confidence in Australia’s migration program” (Department of Foreign Affairs and Trade, 2017, p.71).

In February 2019, political debates over the introduction of the Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018 (‘Medivac Bill’), which aimed to give doctors more power to decide when IMAs could be transferred to Australia from Nauru and Manus Island for medical treatment, once again brought humanitarian arguments to the forefront of the asylum seeker debate. In an impassioned statement to parliament, Morrison declared that the bill would “weaken the border protection framework that has saved lives [and] restored integrity to our immigration system” (Commonwealth [HoR], 12 February 2019, p.13067). In order to emphasise this point, the Coalition once again invoked the drownings argument as a justification for its hardline asylum seeker policy while continuing to place the blame for IMA deaths at sea firmly on Labor’s shoulders:

August 2008 [was] when the vile trade opened and the deaths started. The bodies mounted up, week after week, month after month…[t]he Australian people cried out to us in 2013, and they said: 'Please fix it. Please fix it.' We did.

The Labor Party [are] trying to kid themselves that this is being done in the name of humanitarianism. Well, I remind them that their supposed humanitarianism last time led to

53 See Part III. 180

child deaths, it led to the total destruction of our borders and it took the strength again of a [C]oalition government to undo this (Commonwealth [HoR], 12 February 2019, p.13067).

These statements in turn demonstrate that humanitarian arguments continue to play a significant role in shaping the normative parameters of the asylum seeker debate in Australia. While Rudd’s rearticulated binary between ‘criminal’ people smugglers and ‘vulnerable’ asylum seekers enabled him to legitimate his policy changes to the public, it also provided the Coalition with an invaluable rhetorical tool to contest the scope of Australia’s international obligations to IMAs. However, the fact that the Coalition would go on to suffer a historic defeat when an amended version of the bill was passed in the HoR on February 12 also serves as a timely reminder that Australia’s asylum seeker policy is neither pre-determined nor unyielding (Worthington, 2019).

In Parts 1 and 2, I discussed how the Rudd Government’s rearticulation of the domestic meaning-in- use of international asylum seeker norms in 2007 fundamentally altered the trajectory of the asylum seeker debate in Australia. In order to subject these findings to further empirical analysis, the next section will examine the broader implications of this domestic life-cycle process by identifying parallel developments in other jurisdictions. I will demonstrate that the strategic use of humanitarian arguments in order to justify stronger border protection policies has not been limited to the Australian case, but has rather become an increasingly common tactic that is being by other states in order to justify their hardline responses to irregular migration movements.

III. FRONTEX and the Humanitarianisation of the EUropean Border

On the surface, the EU’s asylum seeker policy framework appears to provide significant human rights protections for individuals fleeing from persecution. Unlike the Asia-Pacific region, all EU members are signatories to both the Refugee Convention and Additional Protocol (Amnesty International, 2015, p.9). Article 78(1) of the Treaty on the Functioning of the European Union (TFEU) states that member states have to comply with the principle of non-refoulement and to offer ‘appropriate status’ to any third-country national requiring international protection from persecution. These guarantees, in conjunction with Article 3 of the Treaty on European Union (TEU) and Articles 18 and 19 of the Charter of Fundamental Rights of the European Union (EU Charter), enshrine the right to asylum as a fundamental principle of EU human rights law. Both the EU Charter and European Convention on Human Rights (ECHR) also contain prohibitions on torture and inhuman and degrading treatment (EU Charter, Article 4; ECHR, Article 3) and arbitrary detention (EU Charter, Article 6; ECHR, Article 5). The Common European Asylum System also supplements the harmonisation of asylum 181 laws among EU member states with effective practical cooperation and burden-sharing arrangements (European Asylum Support Office, 2016, p.16).

Despite these apparent safeguards, the CEAS is also emblematic of the enduring tension between respecting the fundamental rights of non-citizens and maintaining the integrity of the EU’s external borders. The Schengen Border Code (SBC), which governs the conditions under which third-country nationals can enter the EU, states that its provisions “should be applied in accordance with the Member States’ obligations as regards international protection and non-refoulement” (European Parliament, 2016a, (36), Article 4). However, it also places a clear prohibition on asylum seekers on the pretext that it is “in the interests [of] all Member States [to] combat illegal immigration [in order] to prevent any threat to the[ir] internal security” (European Parliament, 2016a, (6)). The 2008 EU Return Directive similarly stipulates that returns have to be conducted in accordance with both the Refugee Convention and Additional Protocol (European Parliament, 2008a, (23)) and that persons must be returned in a “in a humane manner and with full respect for their fundamental rights and dignity” (European Parliament, 2008a, (2). See also (22), Articles 4, 5 and 17). Nevertheless, these provisions do not diminish the directive’s overarching principle that it is “legitimate for Member States to return illegally staying third-country nationals” (European Parliament, 2008a, (8)).

When the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (FRONTEX) was established in October 2004, this dichotomous policy framework was also reflected in its founding document (European Council, 2004). While the regulation acknowledged that Frontex had a duty to “respect the fundamental rights” that are enshrined in EU human rights law (Article 22), its primary stated purpose was to “ensur[e] a uniform and high level of control and surveillance” over Europe’s external borders (Article 1). As the next section will demonstrate, these tensions provided fertile ground for a normative shift in the EU’s political discourse on asylum seekers as Frontex increasingly began to draw on humanitarian rhetoric in order to stave off mounting criticism from refugee advocates over its Joint Operations (JOs).

The Normative Evolution of Frontex

During its first few years in operation, the language that Frontex used was primarily aimed at emphasising “the illegitimate, threatening and thus “criminal” character of irregular migration” (Campesi, 2014, p.131). In its first annual report, asylum seekers were referred to as “illegal migrants” that had to be deterred in order to prevent a potential “influx” from reaching the EU’s external borders (European Council, 2007, p.13). This characterisation, which was markedly similar to the demonising 182 rhetoric that Howard had used in order to legitimate the Pacific Solution in 2001, in turn underpinned the rationale that guided its initial border protection operations.

Between 2006 and 2008, JOs Hera I and II, Poseidon and Nautilus aimed to disrupt the flow of boat arrivals that were using sea routes to the Canary Islands, Malta and the island of Lampedusa (Italy) in order to reach Europe’s shores. While they led to a 74% reduction in boat arrivals to Europe during this period (Human Rights Watch, 2009, p.36), they also breached the EU’s asylum seeker policy framework by expelling significant numbers of irregular migrants to transit countries or ‘third countries’ with whom cooperation agreements had been reached.54 In addition, vessels carrying IMAs were interdicted and diverted on the high seas, while asylum seekers were also subjected to a coercive ‘screening out’ process in Greek detention centres (Keller, Lunacek, Lochbihler & Flautre, 2011, p.13). Frontex justified these measures by stating that the JOs had stopped “close to 5000 illegal immigrants [from] setting off for a dangerous journey that might have cost their lives” (European Council, 2007, p.13). Nevertheless, political groups such as the European Greens increasingly expressed concerns that the operations posed “serious risks” to the welfare of asylum seekers (Keller et al, 2011, p.13). In a 2007 report, the European Council on Refugees and Exiles (ECRE) similarly stated that “for FRONTEX, preventing as many people as possible from entering the EU is the principal indicator of success” (Sirtori & Coelho, 2007, p.13), while the agency was also criticised for its lack of transparency and accountability (Marin, 2014, p.82).

Frontex’s initial response to these criticisms was to deny responsibility for the adverse humanitarian consequences of its JOs by insisting that its role was limited to coordinating operations that were ultimately the responsibility of member states and that its surveillance, interdiction and return policies were crucial measures in the ongoing “fight against illegal immigration” (Moreno-Lax, 2018, p.123; Campesi, 2014, p.128). However, as refugee advocates became increasingly vocal in claiming that Frontex was facilitating the construction of an inhumane ‘Fortress Europe’ (Horsti, 2012, pp. 298- 300; ProAsyl, 2009), it gradually began to infuse the bureaucratic jargon that characterised its reports and public statements with humanitarian language. In addition to moving away from prohibitive characterisations of asylum seekers by referring to them as ‘irregular migrants’ or simply ‘migrants,’ it placed increased emphasis on the argument that the fortification of Europe’s external borders and sea routes was primarily “aimed at saving lives at sea [and] combating trafficking in human beings, a crime from which only the traffickers benefit” (Horsti, 2012, p.305). By shifting the burden of responsibility from irregular migrants to people smugglers, Frontex was, according to Campesi, able

54 The most notable transit countries include Greece, Libya (which remained under the dictatorship of Muammar Gaddafi until 2011), and Turkey, which is not a member of the EU. 183 to legitimate its surveillance and interdiction policies by arguing that they constituted “an adequate response to the protection needs of migrants, who thanks to the providential intervention of military and police forces are protected from the dangers of “clandestine” border crossings” (Campesi, 2014, p.130).

In order to demonstrate that “the human rights issue has moved up on the Frontex agenda” (Frontex, 2009, p.41), the agency signed a cooperation agreement with the UNHCR in June 2008. The agreement stipulated Frontex had to ensure that its “border management is fully compliant with Member States’ international obligations” (UNHCR, 2008). Nevertheless, the moral consequences of Frontex’s ongoing failure to meet international human rights standards was put on stark display when it began to interdict and forcibly return vessels to transit country Libya. These operations, which were conducted under the auspices of the Italian government’s 2008 Friendship Pact with Libya, were ostensibly aimed at “fighting terrorism, organized crime, drug trafficking and illegal immigration” (Human Rights Watch, 2009, p.25). However, they soon came under sustained criticism from refugee advocates for returning IMAs without first determining whether they were refugees or vulnerable persons in need of international protection. These criticisms further intensified when reports emerged that many returnees had been apprehended, detained and subjected to numerous human rights violations upon arriving in Tripoli (Human Rights Watch, 2009, p.23). While these measures had the intended effect of substantially reducing the numbers of IMAs that reached the Italian coast,55 refugee advocates pointed to Libya’s poor human rights record and non-signatory status to the Refugee Convention in order to condemn Frontex’s actions (Hirsi Jamaa and Others v. Italy, 2012, [12], [33]). Once again, the agency attempted to shift the blame for the humanitarian consequences of its actions, with Deputy Executive Director Gil Arias Fernandez maintaining that the Italy-Libya cooperation agreement had “had a positive impact [because] fewer lives have been put at risk [due] to fewer departures” (Human Rights Watch, 2009, p.37).

At the same time, the EU’s consolidation of its human rights framework provided an unexpected avenue for Frontex to increasingly draw on the drownings argument in order to justify its activities. The Treaty of Lisbon, which was enacted in December 2009, not only gave the EU Charter the same binding force as the TEU and TFEU, but also made all EU agencies legally accountable for breaching its provisions (Keller et al, 2011, p.8). However, while the Stockholm Programme stated that the CEAS “should be based on a full and inclusive application of the Geneva Convention on the status of refugees and other relevant international treaties” (European Council, 2009, p.69), it also emphasised the importance of strengthening the EU’s border protection regime in order to “avoid the

55 Between May 2008 and May 2009, the number of IMAs that reached Italy’s coast decreased fivefold. 184 recurrence of tragedies at sea” (European Council, 2009, p.69). In the process, it further legitimated the securitisation and externalisation of EU’s asylum seeker policy framework by imbuing it with a humanitarian imperative. However, while Frontex continued to maintain that its JOs were conducted with the “[f]ull and sincere respect of Fundamental Rights” (Frontex, 2009, p.4), the number of forced returnees increased significantly from 428 in 2007 to 1,622 in 2009 (Keller et al, 2011, p.7).

In April 2010, the European Council amended the SBC in order to further clarify Frontex’s legal obligations when conducting maritime JOs at sea and to provide guidelines on how Search and Rescue (SAR) operations should be conducted. One of the key recommendations was that any measures had to be “proportionate to the objectives pursued and fully respect [the] rights of refugees and asylum seekers, including [the] prohibition of refoulement” (European Council, 2010, (3). See also (6), (10)). However, in November, Frontex’s actions once again came under scrutiny when the Greek Government requested its assistance to manage a sudden increase in irregular migrants at the Greek- Turkish border after 100,888 had arrived in the first nine months alone (Cabot, 2012, p.25). While the Rapid Deployment Border Intervention Team (RABIT), which lasted 121 days, led to a 76% reduction in border crossings, refugee advocates once again accused it of systematically violating the rights of asylum seekers (Campesi, 2014, p.129). In a scathing report, Human Rights Watch (HRW) maintained that irregular migrants had not only been subjected to arbitrary detention and inadequate processing procedures in Greek transit centres, but that Frontex had been well aware of these substandard conditions when it decided to go ahead with the RABIT operation (Marin, 2014, pp.82- 83). These views were further vindicated when the ECtHR found in the case of M.S.S. v Belgium and Greece56 that the forcible return of an Afghan asylum seeker to Greece had violated both Articles 3 (prohibiting inhuman and degrading treatment) and 13 (access to an effective remedy) of the ECHR (at [263], [321]).

Significantly, Frontex responded to these latest criticisms by further enhancing its humanitarian profile. In March 2011, it released its Fundamental Rights Strategy where it declared that it was “fully committed to develop[ing] and promot[ing] a shared understanding of fundamental rights among [the] border-guard community [based] on the EU Acquis [and] international law encompassing international protection obligations” (Frontex, 2011a, preamble). One of the key provisions in the strategy was that Frontex would terminate a JO “if the conditions guaranteeing the respect for fundamental rights are no longer met” (Paragraph 15). In addition, Frontex published its new Code of Conduct which stated that all personnel had to “promote and respect [the] fundamental rights of every individual [in] compliance with the relevant international and European instruments” (Frontex,

56 ECtHR, M.S.S. v Belgium and Greece, request no. 30696/09, of 21 January 2011. 185

2011b, Articles 4 and 5). However, this seemingly inclusive approach was soon put to the test when the ‘Arab Spring’ of 2010-11 led to a sudden increase in irregular migrants from North Africa and the Middle East (Cabot, 2012, p.25). While the democratic uprisings were lauded my many EU leaders, the subsequent fortification of Europe’s southern borders also forced a significant number of asylum seekers to instead take sea routes to Europe (Marin, 2014, p.77; Perkowski, 2012, p.3).

By February 2011, the number of IMAs that had landed in Lampedusa and its neighbouring islands had reached 5,526. As a result, the Italian government declared a ‘humanitarian emergency’ and asked Frontex for urgent assistance to stem the flow of boat arrivals (Horsti, 2012, p.297; European Commission, 2011). However, since the primary goal of Operation Hermes was to put effective measures in place in order to “face the mass influx of migrants” (Frontex, 2012, p.15), questions remained over its willingness to engage in SAR operations as the number of drownings at sea began to dramatically increase. Despite its insistence that “rescuing people in distress at sea is one of the key elements [of] all maritime joint operations” and that 23,192 migrants had been saved in 241 SAR operations in 2011 alone (Frontex, 2012, p.50), the UNHCR estimated that 1,500 IMAs had drowned while attempting to cross the Mediterranean (Marin, 2014, p.76). The scope of Frontex’s normative obligations to IMAs consequently formed the focal point of the landmark Hirsi judgment.

The Hirsi judgment

On 23 February 2012, the ECtHR handed down its judgment in the case of Hirsi Jamaa and Others v Italy.57 The court unanimously held that Italy’s actions in forcibly pushing back a group of Eritrean IMAs to Libya violated both the principle of non-refoulement and Article 4 of Protocol 4 of the ECHR, which prohibits collective expulsions (para 186). In addition, it found that Italy had violated both Articles 3 and 13 of the ECHR (paras 138, 158 and 207). The verdict not only affirmed that Frontex (as an EU agency) had to adhere to both international and EU human rights law when conducting its maritime JOs (including those on the high seas), but that pre-existing bilateral agreements did not negate these obligations in the face of irrefutable evidence that the destination country was failing to uphold its human rights obligations (Giuffré, 2012, pp.744-46). By transferring the applicants to Libya, both the Italian government and Frontex had breached their obligation to protect IMAs from harm (Dembour, 2012). Judge Pinto de Albuquerque concluded that “[o]nly a misconstruction [of] norms [which] aim to secure the protection of especially vulnerable persons [could] justify the[ir] exposure [to] an additional risk of ill-treatment by delivering them to those countries from where they have fled” (Hirsi Jamaa and Others v Italy, 2012, concurring judgment).

57 Hirsi Jamaa and Others v. Italy, Application no. 27765/09, European Court of Human Rights, 23 February 2012. 186

Similarly to the Coalition’s response to the High Court’s decision in Plaintiff M70/2011 v Minister for Immigration and Citizenship, the Hirsi judgment provided the catalyst for Frontex to further adjust its rhetoric in order to turn the new legal landscape to its advantage. By increasingly characterising asylum seekers as potential victims of trafficking in human beings (THB) in its publications (Frontex, 2013, p.13), Frontex reinforced the binary between ‘criminal’ people smugglers and ‘vulnerable’ asylum seekers whilst remaining within the normative boundaries of the EU’s consolidated asylum seeker policy framework (Moreno-Lax, 2018, p.123). Within this context, Frontex’s Memorandum of Understanding (MoU) with Turkey, which was signed on 28 May 2012, was presented both as a border control operation and as a vital exchange of information in order to provide “advice on the adequate operational reaction and preparedness [for] higher numbers of persons in need of international protection” (Frontex, 2013, p.18; Frontexit, 2014). However, even as Frontex’s rhetoric on irregular migrants became more neutral and “victim-centred” (Frontex, 2013, p.62), the continued fortification of Europe’s southern borders led to a marked increase in IMAs during 2012, with Frontex recording a total of 3,307 sea interceptions as part of Operation Poseidon (Frontexit, 2014, p.6; Amnesty International, 2013, p.7). As refugee advocates continued to report widespread human rights violations against irregular migrants at the Greece-Turkey border (Amnesty International, 2013, p.9), the Special Rapporteur on the Human Rights of Migrants, François Crépeau, noted in his April 2013 report that Frontex’s operations were “fundamentally at odds with [the] conceptualization of migrants as individuals and equal holders of human rights” (UNGA, 2013, p.9). Significantly, he also cautioned that “the linking of irregular migration with human trafficking [may] falsely give the impression that irregular migration is a criminal offence” (UNGA, 2013, p.9).

The Lampedusa Tragedy and its Aftermath

On October 3, 2013, an estimated 359 people drowned when a boat carrying over 500 mainly African asylum seekers sank only half a mile away from the shore of Lampedusa. Just like the Christmas Island disaster, the tragedy prompted a widespread outpouring of grief for the victims. However, it also led to growing outrage over what Italian President Giorgio Napolitano called a "succession of true slaughters of innocents" by people smuggling syndicates (L. Davies, 2013). In the days following the incident, Italy’s Minister of Interior, Angelino Alfano, called on the EU to intensify Frontex’s activities in the Mediterranean in order to reduce the possibility of further drownings at sea, while European Commissioner Cecilia Malmström argued that the EU needed to “fight more effectively the criminals who put these people in unseaworthy vessels and organise these journeys of death” (European Commission, 2013a; Perkowski, 2017, p.8; Campesi, 2014, p.127). While Italy launched operation Mare Nostrum on October 18, the European Parliament (EP) formulated its own strategy to “prevent further loss of life at sea” (European Parliament, 2013b). However, whereas Mare 187

Nostrum was “a comprehensive SAR mission with an explicit humanitarian objective” (Steinhilper & Gruijters, 2017), the EU’s response was to strengthen its border protection regime by establishing the Task Force Mediterranean (TFM) and implementing the European Border Surveillance System (EUROSUR). Despite previously assuring refugee advocates that Eurosur “will make an important contribution to saving lives of those who put themselves in danger to reach Europe’s shores” (European Commission, 2013b), the European Commission (EC) made it clear that its primary purpose was to “detec[t], preven[t] and comba[t] illegal immigration and cross-border crime” (European Parliament, 2013a, (1)).

In May 2014, the EP further clarified how maritime JOs should be conducted in accordance with the Hirsi judgment (European Parliament, 2014, [8]-[9]). The stated objective of the regulation was to “ensure the efficient monitoring of the crossing of external borders [while] contributing to ensuring the protection and saving of lives” (European Parliament, 2014, [1], [6]). However, the European Greens argued that it “legalises push back operations rather than effectively protect[ing] people fleeing from persecution” by authorising the forcible return of IMAs to third countries on the (largely unenforceable) proviso that they would not be subjected to persecution there (Keller, 2014). In addition to shifting the burden of responsibility back onto IMAs that sought out the services of people smugglers, these measures had the cumulative effect of further entrenching the drownings argument as the primary justification for the introduction of more hardline border protection measures. As a result, the normative obligations that underpinned the EU’s asylum seeker policy framework became increasingly ancillary to the overarching objective of preventing IMAs from risking their lives at sea (European Parliament, 2013a, (15), articles 2(4), 20(3), 20(5); Rijpma & Vermeulen, 2015, p.466).

While Operation Mare Nostrum saved more than 130,000 lives at sea during 2014, an estimated 3,000 people perished as boat arrivals continued to increase due to the continuing turmoil in the Middle- East (L. Davies & Neslen, 2014). Nevertheless, the operation was wound down after just 12 months and replaced with the Frontex-led JO Triton, which significantly differed from its predecessor by once again according primacy to surveillance and interdiction measures. In addition to maintaining that Triton’s limited capacity to engage in SAR missions would inevitably lead to an increase in asylum seeker deaths at sea (Rijpma & Vermeulen, 2015, p.467), refugee advocates accused EU leaders of pressuring Italy to end Mare Nostrum on the basis that it was “creat[ing] an unintended ‘pull factor’ [and] encouraging more migrants to attempt the dangerous sea crossing” (A. Taylor, 2015). Once again, Frontex justified its activities by pointing to the fact that it had saved more than 173,500 IMAs at sea, with 14,500 having been rescued during the first two months of Operation Triton alone (Frontex, 2015, p.17). 188

By 2015, an unprecedented number of asylum seekers and irregular migrants from Syria, Iraq and Afghanistan were attempting to gain access to the EU in what became known as European Migrant Crisis. In addition to placing a significant strain on Europe’s southern borders, the fact that 90% (over a million people) were attempting to reach the EU via the Mediterranean meant that the number of deaths at sea rose exponentially (Amnesty International, 2015, p.8; Ghezelbash, Moreno-Lax, Klein & Opeskin, 2018, p.318). On April 18 (less than a week after 400 people had perished), an estimated 800 IMAs drowned when their vessel capsized in what became one of the worst maritime disasters in the Mediterranean in decades (Binnie, 2015; Faiola, 2015). While refugee advocates blamed the tragedies on the EU’s continued failure to enact a comprehensive SAR strategy on a similar scale to Mare Nostrum (C. Heller & Pezzani, 2016), Frontex director Fabrice Leggeri defended Triton’s limited mandate by stating that “[w]e should not support and fuel the business of traffickers” (Kingsley & Traynor, 2015).

This sentiment reflected the EU’s broader resolve to implement more stringent border control measures in order to ‘save lives’ by disrupting people smuggling operations (Miglierini, 2016). In May 2015, the EC introduced the EU Action Plan against Migrant Smuggling (2015-2020). While one of its key objectives was to “ensur[e] the protection of the human rights of migrants” (European Commission, 2015a, p.2), it also advocated the forcible interdiction, towing and destruction of vessels carrying IMAs in order to reduce available migration routes (European Commission, 2015b, p.3). In June, it launched Operation Sophia under the auspices of the European Union Naval Force Mediterranean (EUNAVFOR Med), whose primary mandate is to “undertake systematic efforts [to] disrupt the business model of human smuggling and trafficking networks in [order to] prevent the further loss of life at sea” (EUNAVFOR Med, n.d.). The cumulative impact of these developments was that while the EU’s response to the European Migrant Crisis was purportedly informed by an overarching desire to “sav[e] lives [by] ensuring protection of those in need” (European Commission, 2015b, p.1), its primary objective was to prevent irregular migrants from reaching Europe in the first place (European Parliament, 2016b, p.12).

‘FRONTEX 2.0’

On 12 April 2016, up to 500 IMAs perished in the southern Mediterranean. The ongoing failure of Operation Sophia to reduce the number of IMA deaths at sea led refugee advocates to declare that Frontex’s policies were “not geared towards the protection of human lives but to keep at a distance migrants and refugees in the name of the “fight against smugglers”” (Frontexit, 2016a). Nevertheless, the EP opted to endorse the EC’s recommendation to significantly expand Frontex’s border 189 surveillance and interdiction powers by turning it into the European Border and Coast Guard Agency. The new ‘Super Frontex’ proposal was vehemently condemned by refugee advocates who warned that it would be transformed “into a border defence and deportation agency” (Gotey, 2016; Frontexit, 2016b). However, when its founding regulation was updated in September, it revealed just how central humanitarian language had become in the EU asylum seeker debate. The new version was replete with references that Frontex would “fulfil its tasks in full respect for fundamental rights [and] relevant international law [in] order to protect and save lives whenever and wherever so required” (European Parliament, 2016c, [47]. See also [2], [14], [27], [34], [40], [46], [48]-[50], Articles 1, 6(3), 12(3)(e), 16(3)(d)-(m), 18(4)(a), 18(5), 21(4)-(5), 22(3)(b), 25(4), 27(1), 28(3)-(7), 34(1), 35, 36(2)- (5), 40(2), 52(4), 54(2)-(4), 55(3)). Nevertheless, it was readily apparent that the overriding purpose of Frontex 2.0 was to enhance the agency’s ability to strengthen the EU’s level of “border control [by] address[ing] illegal immigration [and] counter[ing] cross-border crime” (European Parliament, 2016c, Article 4g. See also [23], Articles 4(a), 8(r), 12(3)(b), 15(1), 47(c), 55(2)-(3)).

Unsurprisingly, the expansion of Frontex’s mandate was roundly condemned by refugee advocates. The International Federation for Human Rights (FIDH) maintained that Frontex’s ability to deploy its forces more rapidly at the EU’s external borders “will only result in making migrants’ journeys more dangerous” by forcing them to access sea routes (Worldwide Movement for Human Rights, 2016). However, despite growing concerns that Frontex had become the “armed wing of Europe” (Frontexit, 2016a), the European Border and Coast Guard was officially launched on October 6. With a budget of 254 million Euros (an increase of 1,336% since 2006), Frontex now enjoyed an unprecedented level of autonomy that was bolstered by its ability to sign agreements with non-EU countries without being subject to the regulatory control of national or regional parliaments (Frontexit, 2017, p.4). While refugee advocates pointed to the fact that an estimated 5,143 IMAs had drowned at sea in 2016 (compared to 3,785 in 2015) as irrefutable evidence that Frontex’s humanitarian credentials had been vastly overstated (Bilgic, 2017), the drownings argument had become such a prominent feature of the EU’s political discourse on asylum seekers that it was able to justify the agency’s expanded mandate by claiming that it was driven by both a moral imperative and practical necessity.

This dominant discourse also had the effect of increasingly marginalising opposing viewpoints. When a number of humanitarian organisations, including SOS Mediterranée and Médicins Sans Frontières (MSF), increased their presence in the Mediterranean in early 2017 order to rescue IMAs in distress, Leggeri accused them of actively “supporting the business of criminal networks” by rescuing their clients and encouraging “traffickers to force even more migrants on to unseaworthy boats” (Wintour, 190

2017; A. Baker, 2016). While refugee advocates maintained that push factors were primarily to blame and that their actions were not “the cause but a response” to the European Migrant Crisis (Wintour, 2017), the sustained pressure on NGOs to cease their SAR operations intensified even as the flow of IMAs began to decrease. In June 2018, Italian interior Minister (and head of the hard-Right, anti- immigrant League party) Matteo Salvini accused humanitarian organisations of providing a “taxi service” for irregular migrants after Italy had engaged in a tense stand-off with Malta over who would take responsibility for nearly 630 IMAs that had been rescued by the MV Aquarius (Squires, 2018). Five months later, the vessel had its Panamanian registration revoked following a decision by Italian judicial authorities that it posed a ‘public health risk.’ While MSF called it a “disproportionate [and] unfounded measure” that was aimed at “criminalizing lifesaving medical-humanitarian action at sea” (Info Migrants, 2018; SOS Mediterranée, 2018), the decision was emblematic of the now widespread political consensus that hardline measures were justified in order to deter IMAs from risking their lives at sea.

The Humanitarianisation/Securitisation Nexus: A Normative Perspective

As the above analysis demonstrates, there are a number of striking parallels between the ‘humanitarianisation’ of Frontex and Australia’s asylum seeker policy during the Rudd/Gillard era. While Frontex’s initial portrayal of asylum seekers as ‘illegal migrants’ that posed an imminent threat to the EU’s external borders had distinct similarities to Howard’s post-9/11 hardline rhetoric on IMAs, its strategic use of humanitarian arguments in order to stave off criticism of its activities was markedly similar to the Coalition’s strategy of appropriating Rudd’s compassion rhetoric in order to provide a justificatory basis for its ‘stop the boats’ policy. Moreover, just as Abbott had turned Rudd’s concern for the ‘vulnerable stranger’ into a legitimacy deficit by drawing direct parallels between Labor’s asylum seeker policies and IMA deaths at sea, Frontex’s re-characterisation of IMAs as potential ‘victims of THB’ enabled it to legitimate its expanded powers by demonstrating that these new measures were vital in order to ‘save lives’ by disrupting the people smuggling trade. While the sudden increase in boat arrivals and maritime disasters significantly enhanced their ability to advocate for the implementation of hardline border protection measures, the fact that these arguments were not couched in hostile and dehumanising representations of IMAs as the threatening ‘Other’ affirms that the drownings argument has become an increasingly dominant paradigm in the asylum seeker debate at both the national and international level.

The importance of this last point becomes readily apparent when the European case is examined through the prism of the conceptual framework that was developed in Chapter 1. In her normative assessment of Frontex’s activities, Perkowski situates Frontex’s transformation into a ‘humanitarian’ 191 border agency within the EU’s broader post-Cold War evolution into an ‘Area of Freedom, Security and Justice’ (AFSJ) (Perkowski, 2012, p.11). Since its establishment under the Maastricht Treaty in 1992, EU policy-formulation has increasingly been centred around the public promotion of “peace and reconciliation, democracy and human rights” (Holzhacker & Luif, 2014, p.1; Perkowski, 2012, p.57). While this constructed identity has frequently come into conflict with its broader function as a security community (Trauner & Wolff, 2014, p.5), Frontex’s increased use of humanitarian language can be viewed as a direct attempt to make its mandate more congruent with both the EU’s burgeoning human rights framework and the contemporaneous socio-political environment within which they operated. By situating its response within the rearticulated normative parameters of the EU’s cosmopolitan identity, Frontex was able to justify its surveillance and interdiction measures on the basis that they were primarily aimed at protecting IMAs from harm. The subsequent normalisation of the drownings argument within the EU’s discourse on asylum seekers not only legitimised its operations, but also had the effect of “de-legitimise[ing] alternative definitions of the issue [by] neutralis[ing] the critical potential of humanitarian rhetoric [to question the] ethical and political legitimacy of [its] actions” (Campesi, 2014, p.131).

When viewed in conjunction with one another, both the Australian and EU cases further affirm the broad conclusion that was made earlier in this chapter that domestic contestation processes can endure long after the normative life-cycle has ostensibly been completed, and that the rearticulated meanings that emerge from these processes can have significant long-term effects on the efficacy of international normative regimes. While it would be erroneous to draw direct causal links between both cases, it is clear that the post-Cold War normative shift that had placed a renewed emphasis on the importance of international human rights norms also had the unintended effect of altering the content of state-based challenges to their domestic application. On the one hand, there is no question that access to regular contestation did have a legitimating effect in both instances, However, the evidence also suggests that the consolidation of the drownings argument as a valid challenge to the right to seek asylum has not only provided political elites with an invaluable rhetorical tool in order to justify their hardline border protection policies, but has also started to weaken the international regime on refugees and asylum seekers.

Conclusion

When Rudd publicly expressed his desire to help the ‘vulnerable stranger’ in 2006, he set in motion a normative shift that would fundamentally alter the domestic meaning-in-use of international asylum seeker norms in Australia. In the leadup to the 2007 Federal Election, Rudd’s compassion rhetoric 192 was specifically aimed at de-legitimising the Howard government’s asylum seeker policy by fortifying his claim that the Pacific Solution was both impractical and immoral. However, his subsequent attempt to justify Labor’s policy changes by claiming that they would be both ‘hardline and humane’ also changed the trajectory of the asylum seeker debate as politicians and media commentators from all sides of the political spectrum increasingly drew on humanitarian arguments in order to justify their positions on the issue. As the domestic consensus grew that Rudd had failed to fulfil his fulfil his campaign promise to protect both Australia’s borders and the welfare of asylum seekers, the Coalition was able to successfully advance its argument that hardline measures were necessary in order to’ save lives.’ While the drownings argument is often portrayed within the contemporary norm contestation literature as “another securitization/humanitarianization tool” (Moreno-Lax, 2018, p.119), the conclusion will demonstrate that its utility clearly extends far beyond the domestic context as states are increasingly drawing on humanitarian arguments in order to challenge the formal validity of international asylum seeker norms.

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Conclusion

Introduction

This thesis has demonstrated that the question of why the Rudd government’s attempt to take Australia’s asylum seeker policy in a more humanitarian direction in 2007 was unable to be sustained cannot be answered without taking equal account of the agents that contest international norms, the socio-political environments within which they operate, and the broader contextual matrix within which debates over their domestic applicability take place. When Kevin Rudd declared in late 2006 that Australia had a moral obligation to protect the ‘vulnerable stranger in our midst,’ he set in motion a normative shift that would have significant implications for how the issue would be contested over the next seven years. By creating a new binary between ‘criminal’ people smugglers and ‘vulnerable’ IMAs, Rudd not only rearticulated the domestic ‘meaning-in-use’ of international asylum seeker norms in Australia, but also altered the parameters of the norm contestation process by placing competing notions of morality, compassion and normative responsibility at the centre of the asylum seeker debate.

The steady increases in boat arrivals after 2009 and the severe domestic backlash that followed did play a crucial role in compelling both Rudd and Gillard to gradually reintroduce the punitive policies that had underpinned the Howard Government’s Pacific Solution. However, the available evidence affirms that it was Abbott’s strategic use of humanitarian arguments that enabled the Coalition to de- legitimise both pillars of Labor’s ‘hardline and humane’ policy by arguing that it had failed to keep Australia’s borders secure while protecting the welfare of IMAs. The so-called ‘drownings argument,’ which drew direct parallels between the Rudd Government’s (partial) dismantling of the Pacific Solution and asylum seeker deaths at sea, wedged Labor into a political corner from which it could not extricate itself. Moreover, it engendered a renewed bipartisan consensus that hardline asylum seeker policies were justified in order to prevent IMAs from ‘risking their lives’ on hazardous sea voyages.

194

I. The Politics of Norm Contestation (Revisited)

When Finnemore and Sikkink (1998) and Risse et al (1999) developed their ‘life cycle’ and ‘spiral’ models of normative change, they aimed to provide “substantive hypotheses about which norms will be influential in world politics and under what conditions they will be influential” (Finnemore & Sikkink, 1998, p.906). These models soon came under criticism for advancing a static interpretation of the normative life-cycle by distilling the process of norm emergence, international diffusion and domestic implementation into sequential and path-dependent phases. By assuming that norm entrepreneurs and transnational advocacy networks could be ‘socialised’ into accepting ‘universally applicable’ human rights norms, the specific dynamics of the norm contestation process were left under-explored. Subsequent contributions attempted to redress these conceptual gaps by acknowledging that the domestic applicability of international norms depended on their compatibility with the “historically formed ideologies [and] structure of [the] political discourse of a nation” (Finnemore & Sikkink, 2001, p.407; Cortell & Davis Jr., 2000, p.67). Nevertheless, the fact that these ideologies, structures and discourses also change over time was often not sufficiently acknowledged within these analyses. As a result, there was a tendency to characterise the normative life-cycle as a finite process where international norms were either full incorporated or summarily rejected at the domestic level (Engelkamp, Glaab & Renner, 2016, p.56).

Based on these considerations, I developed a conceptual framework in order to ascertain why Rudd was able to engender a normative shift on asylum seekers in 2007, and why his compassionate stance on boat arrivals was subsequently abandoned. First, I drew on the central contention by CNR scholars that since norms are “both structuring and socially constructed through interaction in a context” (Wiener, 2014, p.27), the domestic ‘meaning-in-use’ of international norms is both dynamic and context-specific. Second, I incorporated discourse-analytical frameworks on political legitimation and rhetorical coercion in order to enable the theoretical insights within the CNR literature to be more effectively subjected to empirical analysis. In addition to providing the analytical tools for examining how Labor’s ‘hardline and humane’ policy was de-legitimised in both the political and public spheres, the conceptual framework offers a comprehensive insight into how the norm contestation process functions in practice. Therefore, it can also be readily applied to other case studies in order to examine how international norms are contested and subsequently (re)articulated in diverse domestic settings.

The Agent-Structure-Context Nexus

One of the key findings in Chapter 4 was that Australia’s normative shift on asylum seekers in 2007 was primarily attributable to the mutually constitute interactions of agents, structures and relevant 195 contexts. While Rudd played a decisive role in facilitating this shift, he also benefited from the presence of a more amenable socio-political environment as the adverse humanitarian consequences of Howard’s Pacific Solution became increasingly apparent. However, his subsequent attempt to reconcile Australia’s international obligations under the Refugee Convention and associated human rights instruments with its domestic asylum seeker framework by claiming that his policy would be both ‘hardline and humane’ also contributed to the demise of Labor’s humanitarian platform on IMAs. When Rudd rearticulated the normative boundaries of the existing binary between ‘genuine’ refugees and ‘undeserving’ IMAs to ‘criminal’ people smugglers and ‘vulnerable’ asylum seekers, he also paved the way for the Coalition to appropriate its compassion rhetoric in order to advance its own political agenda on the issue.

Based on these considerations, it becomes clear that Labor’s policy reversals on asylum seekers were similarly attributable to a confluence of interrelated agent-driven, structural, and broader contextual factors, rather than being the inevitable consequence of long-standing narratives of deterrence and exclusion that have remained relatively constant over time. The sudden increase in IMAs after 2009, a series of politically contentious maritime incidents, an overburdened immigration detention system, sustained opposition from both the Coalition and (eventually) the Greens, and an increasingly hostile public sphere all played a crucial role in prompting both Rudd and Gillard to once again take a hardline stance on IMAs. However, the fact that both leaders formulated vastly different policy solutions to stemming the flow of boat arrivals demonstrates that their own leadership styles and interpretation of the socio-political environment within which they operated also influenced the trajectory of Australia’s asylum seeker policy between 2007 and 2013. Moreover, the Coalition’s increasingly prolific use of humanitarian arguments in order to strengthen its ‘Stop the Boats’ policy demonstrates that it was both willing and able to diversify its political message on boat arrivals in order to make it more congruent with contemporaneous standards of normative appropriateness.

By acknowledging that the norm contestation process is both dynamic and context-specific, the conceptual model exceeds the theoretical confines of the ‘agent-structure’ problem that restricted the ability of first-generation constructivists to provide a comprehensive account of how norms shape the behaviour of states. Moreover, by recognising that the type of rhetorical strategy that political elites adopt in order to advance their position on a particular policy issue depends on the specific contextual matrix within which they are being promulgated, it redresses the static nature of earlier accounts of the normative life-cycle process. This acknowledgement in turn adds another layer of complexity to existing accounts that attribute the trajectory of Australia’s asylum seeker policy to ideational, structural and broader historical factors that have remained relatively constant over time. Chapters 3 196 to 5 largely affirm that Australia’s political response to IMAs continues to be underpinned by an overarching concern with protecting its sovereign borders from perceived exogenous threats. Nevertheless, the fact that these deterrence-based policies have increasingly been justified on the basis that they are necessary in order to ‘save lives’ also demonstrates that Australia’s asylum seeker policy is neither static nor pre-determined by the countervailing effect of embedded domestic structures, beliefs and practices.

Norm Compliance within Liberal Democratic States

The second benefit of the conceptual framework that was developed in this thesis is that it is flexible enough to encompass case studies that examine domestic challenges to (and potential violations of) international human rights norms by liberal democratic states. By focusing primarily on authoritarian states, first-generation constructivists largely refrained from acknowledging this point by maintaining that liberal democratic regimes were the ideal conduits for promoting normative change because human rights compliance constitutes an innate part of their national identity. However, this thesis has demonstrated that while the pluralist nature of these systems significantly enhances the ability of agents to gain equal access to contestation, this process is often far from deliberative. In addition to being readily utilised by political elites in order to manoeuvre their opponents into a rhetorical corner, the overriding need to legitimate their policies to a domestic audience also plays a crucial role in determining how agents contest the domestic applicability of international norms in liberal democratic settings.

This point is aptly demonstrated by the types of arguments that both Rudd and his main political opponent Abbott used in order to justify their policies to the Australian public. During the 2007 Federal Election, Rudd harnessed the growing public resentment over Howard’s ongoing refusal to take a more progressive stance on asylum seekers by arguing that the Pacific Solution was both fiscally irresponsible and morally reprehensible. However, his attempt to appeal to all sides of the political spectrum by maintaining that his government’s asylum seeker policy would be both ‘hardline and humane’ also paved the way for Abbott to appropriate his Rudd’s compassion rhetoric for his own purposes. After becoming Opposition leader in December 2009, Abbott increasingly argued that Labor’s asylum seeker policies harmed the welfare of IMAs by encouraging them to risk their lives at sea and subjecting them to lengthy stays in overcrowded immigration detention centres. While the primary purpose of these arguments was to fortify the Coalition’s deterrence-based message that IMAs had to be deterred from reaching Australia’s shores, they also reflected an awareness that demonising rhetoric was no longer congruent with Australia’s contemporaneous socio-political climate. By demonstrating that Rudd had failed to fulfil his election promise to protect Australia’s 197 borders whilst treating IMAs with compassion, Abbott was able to legitimate the reintroduction of the Pacific Solution on the basis that it constituted a justifiable policy response on both practical and moral grounds.

The Cyclical Nature of Normative Life-Cycles

The third benefit of the conceptual framework developed in this thesis is that it broadens the scope of inquiry by demonstrating that this ongoing process of normative rearticulation can have both immediate and more far-reaching consequences. In Chapter 1, I pointed out that more recent contributions such as Acharya’s norm circulation model have begun to address this crucial point by demonstrating that the meanings that are attached to international norms are not only altered in localised contexts, but are also diffused back into the international arena. However, I also argued that there is an ongoing tendency by some CNR scholars to assert that since international human rights norms are ‘universally applicable,’ their formal validity will either be strengthened by these domestic processes or remain relatively unassailed (Niemann & Shillinger, 2016, p.6). As a result, analyses of state-based rejections of international human rights norms have been largely limited to the domestic context by focusing on the countervailing effect of claims that they are culturally incompatible or otherwise threaten their national security or territorial sovereignty.

Therefore, the assumption that “norms that generate multiple interpretations [do] not necessarily affect general intersubjective agreement on the norm itself” (Betcy, 2018, p.5) does not take into account that these rearticulated understandings may also erode their formal validity by being diffused back into the international arena. As Betts and Orchard succinctly point out, “contestation within one process can directly affect the other” (Betts & Orchard, 2014, p.270). In addition to strategically utilising the drownings argument in order to de-legitimise Labor’s asylum seeker policy, the Coalition began to openly challenge the Refugee Convention on the basis that its provisions were actively encouraging IMAs to undertake the dangerous journey to Australia in order to invoke its protection obligations. By framing their objections in humanitarian rather than exclusionary terms, they successfully advanced the argument that the current normative regime on refugees was no longer capable of fulfilling its stated purpose of protecting vulnerable persons from harm. As the next section will demonstrate, this logical progression in the asylum seeker debate has also become increasingly evident in the EU as European leaders have become increasingly prolific in challenging both the practical and moral foundations of the international normative regimes on refugees and asylum seekers. 198

II. A Refugee Convention for the ‘21st Century’?

Over the last decade, scholars have increasingly turned their attention to examining the relatively recent phenomenon that has been broadly termed the ‘humanitarianization of the border’ (Little & Vaughan-Williams, 2016; J. Williams, 2016; Pallister-Wilkins, 2015). According to Little and Vaughan-Williams, states are increasingly drawing on “transnational discourse[s] of compassionate border security [that] operate according to a universal and therefore purportedly borderless logic of ‘saving lives’” in order to justify their restrictive asylum seeker policies (Little & Vaughan-Williams, 2016; p.3). By using “humanitarian script[s] in which intervention is mobilized as an act of charity and protection” (Walters, 2011, p.145), these states have attempted to justify their hardline responses to IMAs by portraying periodic increases in boat arrivals (and deaths at sea) as humanitarian emergencies rather than existential threats (Horsti, 2012, p.306).

There is no question that the “double reification of ‘boat migrants’ as threats to border security and as victims of smuggling/trafficking” (Moreno-Lax, 2018, p.119) has enabled states to justify the continued exclusion of irregular migrants from their sovereign territories by claiming that hardline border protection policies are necessary in order to “prevent further loss of life at sea” (European Parliament, 2013b). However, the argument that these developments can “be read as the typical outcome of a process of migration securitisation” downplays the broader normative implications of these arguments for international refugee and asylum seeker norms (Campesi, 2014, p.128; Perkowski, 2017, p.9). At the height of the European Migrant Crisis, leaders from all sides of the political spectrum began to assert that the Refugee Convention needed to be updated in order to provide a more effective solution to contemporary irregular migration movements (Allen & Robinson, 2016). In September 2015, the leader of the right-wing UK Independence Party (UKIP) leader Nigel Farage highlighted the drowning death of 3-year old Syrian refugee Aylan Kurdi in order to reinforce his argument that the EU needed to reinforce its borders “just as the Australians [had]” because “[if] people would know they would not be accepted by coming across the water [that] would stop the drownings from happening” (Polakow-Suransky, 2017). A year later, Dutch Prime Minister Mark Rutte similarly argued that it was “morally right to consider” changing the Convention because “[w]e have a different world than when all these agreements and conventions were created” (Allen & Robinson, 2016).

These developments in turn lend further support to the argument that “[t]he Refugees Convention is no longer supported by the ideological consensus that existed post World War II” (Curran & Kneebone, 2003, p.11) On the one hand, refugee advocates have pointed out that the definition of a refugee in Article 1A(2) is currently too narrow to encompass all types of persecution and that the 199 requirement that the person needed to be outside their country of nationality ignores the plight of other vulnerable groups such as IDPs (Cole, 2015; Would a new UN Convention, 2015). However, critics of the Refugee Convention maintain that the non-refoulement principle and lack of restrictions on secondary movements places an unfair burden on both transit countries and ‘preferred’ destination countries (Koser, 2015; Europe migrant crisis, 2015). By enshrining the right to seek asylum as a fundamental principle of international law, they further argue that the convention acts as a ‘pull factor’ by encouraging IMAs to undertake risky journeys in order to invoke a state’s protection obligations (Dejevski, 2016). While Rudd repeatedly rejected these claims during his first term as Prime Minister, the effectiveness of this argument is readily demonstrated by the strong bipartisan consensus in Australia by 2013 that the Refugee Convention needed to be overhauled in order to protect the welfare of IMAs.

There is, of course, ample evidence to suggest that many states continue to draw on hostile representations of IMAs as criminal deviants and threatening ‘Others’ in order to justify the continued implementation of hardline immigration policies. The 9/11 attacks and subsequent increase in Islamic terrorist attacks on European soil were accompanied by a corresponding rise in far-right parties (including UKIP) that capitalised on the growing resentment against Muslim refugees in order to promote their anti-immigration agendas (Robins-Early, 2015; Wadi, 2018). In February 2019, U.S. president Donald Trump also justified his concerted campaign to prevent irregular migrants from crossing the US-Mexican border by invoking his legislative right to declare the situation a national emergency (Greene, 2019). However, Trump’s immigration policy also engendered a severe domestic and international backlash as the adverse humanitarian consequences of his policies (including the separation of families at the border and potentially indefinite detention of children) became increasingly apparent (Meng, 2018, McCarthy, 2019). This in turn reinforces the central contention within this thesis that the ability of political elites to legitimate their normative stances on a specific policy issue depends on the extent to which they are able provide both a moral and practical rationale for them. By being predicated on welfare-centric concerns over the preservation of life, both the drownings argument and its humanitarian variants therefore constitute the most effective challenge yet to the Refugee Convention and associated human rights protections for asylum seekers.

Conclusion

It is perhaps somewhat ironic that while Finnemore and Sikkink’s work on the normative life-cycle of political change has engendered a large body of scholarship that challenges many of its key findings, this thesis has also affirmed one of its main assertions, albeit not in the context that it was 200 originally made. When discussing the conditions under which the political message of norm entrepreneurs would be most readily received, they pointed out that norms that are aimed at “protecting vulnerable groups from bodily harm will have more transnational resonance than other norms” because they are congruent “with basic ideas of human dignity common to most cultures” (Finnemore & Sikkink, 1998, p.907).

However, this thesis has demonstrated that these sentiments have also provided states with the requisite tools in order to challenge the normative foundation of the Refugee Convention. This is readily demonstrated by the fact that an increased number of states (including Australia) have argued that people smuggling networks take advantage of the non-refoulement principle in order to encourage IMAs to undertake risky sea voyages with the goal of invoking their protection obligations. While the push to create a more globalised and democratised international community during the post-Cold War period had paved the way for Rudd’s concerns for the ‘vulnerable stranger’ to be more favourably received, it was the Coalition’s strategic appropriation of Rudd’s compassion rhetoric that enabled it to successfully argue that the Pacific Solution would protect the lives of IMAs by preventing them from reaching Australia’s shores. Therefore, the overall conclusion that can be drawn is that the ‘humanitarianisation of the border’ not only constitutes the most effective challenge to the international normative regime on refugees and asylum seekers, but will also have significant long- term consequences for how political elites interpret the scope of their normative obligations to asylum seekers over the coming decades.

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