DOCSLIB.ORG

Phd Thesis Barbara Rogalla

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Phd Thesis Barbara Rogalla View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by RMIT Research Repository PhD Thesis Barbara Rogalla Framed by Legal Rationalism: Refugees and the Howard Government’s Selective Use of Legal Rationality, 1999 — 2003. A thesis submitted in fulfilment for the requirements for the degree of Doctor of Philosophy Barbara Rogalla School of Global Studies, Social Science and Planning Portfolio: Design and Social Context RMIT University May 2007 - 1 - PhD Thesis Barbara Rogalla Acknowledgements Several people have contributed to the success of this thesis. I express my gratitude and appreciation for their contribution that expanded the direction of my intellectual development. A big “thank you” and an acknowledgement of intellectual indebtedness to my supervisors for sharing their expertise and providing nurture and guidance along the way: Professor Paul James, Dr Christopher Scanlon and Dr Leanne Reinke. Many thanks to Patrick T. Byrt, Counsellor at Law, Adelaide, to Julian Burnside, QC and to Dr Savitri Taylor from the School of Law at La Trobe University for our thought provoking discussions. I also wish to acknowledge the work of Jack Smit at Project SafeCom for collating and distributing the Project SafeCom newsletter, which contains a database of media references. I have made extensive use of this resource. Thank you to Rob Sheehan at SharpWords for sub-editing this thesis. Sincere appreciation to the late Rebecca Mc Inerney and to Debbie and Tony Morcos for their friendship and support for many steps in this journey. - 2 - PhD Thesis Barbara Rogalla TABLE OF CONTENTS Introduction........................................................................................ 5 Chapter 1 Political and Theoretical Background ................................................ 14 Policy Responses to Refugees............................................................... 16 Policy as an Instrument of Framing ........................................................ 26 Arguing Legal Rationalism...................................................................... 34 Section 1 — Case Studies ..................................................... 42 Chapter 2 Showdown at Sea—The Tampa ................................................ 49 New Framing of an Old Issue ................................................................. 52 Entry without Permission ................................................................. 56 Tampa and a Humanitarian Policy .................................................. 62 Morphing Borders, Morphing Policies..................................................... 67 The End of Mandatory Detention..................................................... 70 Detention of Refugees Abroad ........................................................ 75 Tampa Aftermath .................................................................................... 83 Conclusion .............................................................................................. 95 Chapter 3 Detention in the Desert—Woomera......................................... 97 Public Policy on Detention .................................................................... 101 Managing the Policy.............................................................................. 111 Reporting and Accountability......................................................... 112 Changes to What End?.................................................................. 119 Criminalisation of Detention.................................................................. 123 Conclusion ............................................................................................ 138 Chapter 4 A Special Case—Children in Detention ......................... 141 Policy Framework ................................................................................. 144 Service Delivery of the Contract ........................................................... 149 Buffers to the Policy .............................................................................. 160 Home-based Detention.................................................................. 161 Residential Housing Projects......................................................... 167 Conclusion ............................................................................................ 172 Conclusion to Section 1 — Case Studies ............... 176 - 3 - PhD Thesis Barbara Rogalla Section 2 — Themes............................................................... 180 Chapter 5 Bureaucratic Process and Ministerial Powers ................. 186 New Practices in a Slowly Changing Structure..................................... 189 Power within Political Structure............................................................. 194 Excluding the Judiciary ......................................................................... 201 Structuring to Exclude.................................................................... 202 Exclusionary Legislation ................................................................ 209 Taming the Watchdogs ......................................................................... 220 A Much Better Colonisation? ................................................................ 229 Conclusion ............................................................................................ 235 Chapter 6 Politicisation of the Law............................................................. 237 The Law, Judiciary and Parliament....................................................... 240 The Frame Becomes Legal Precedent ................................................. 245 The System Colonises Itself ................................................................. 257 Pacific Solution on Trial ................................................................. 265 Conclusion ............................................................................................ 273 Chapter 7 Formation of the Public Voice................................................. 276 Thoughts of the Public .......................................................................... 279 Rhetorical Threats................................................................................. 287 Of contest and Agreement.................................................................... 297 Conclusion ............................................................................................ 311 Conclusion to Section 2 — Themes............................... 313 Chapter 8 Conclusion....................................................................................... 318 Legal Rationalism Revisited.................................................................. 322 Political Process as a Colonising Agent ............................................... 327 Postscript: The Ongoing Consequences of Legal Rationalism ............ 335 Appendices Appendix A — Onshore Refugees........................................................ 346 Appendix B — Defence and Immigration.............................................. 358 Appendix C — Ministerial Intervention.................................................. 364 References Court Cases .......................................................................................... 365 Legislation............................................................................................. 367 Bibliography .......................................................................................... 368 - 4 - Introduction Being a refugee means taking refuge in a country other than one’s own. Many people are affected by the upheavals of refugee flight. In 1999 alone, the United Nations assisted approximately 17 million such people world-wide to live in another country or to return home.1 Australia was not immune from the upheavals of such massive global population movement. Some, however, made their way to Australia without first consulting with the relevant authorities. They arrived unannounced and by boat. Between 1999 and 2003, about ten thousand people arrived in Australia in such manner.2 Of these, the majority were refugees: The cited report shows that Australian authorities conferred refugee status to 7,339 of the 10,289 arrivals during this time-frame. It is likely that the actual number of refugees among this group was even higher because 2,085 people were in immigration detention, with at least some refugee determinations still in progress when the Department of Immigration and Multicultural Affairs published these figures. Whilst their claims for fleeing persecution thus were justified in most instances, the Howard government generally perceived uninvited refugees as a problem to the orderly process that regulated refugee intakes. This perception translated into a lack of enthusiasm and a hesitation to attend to a documented need among uninvited refugees who came to Australia. 1 United Nations, (2004, 22 April). More Information/Humanitarian Affairs. [Website]. Humanitarian Action. 2 Department of Immigration and Multicultural Affairs, (2003, 12 September) Fact Sheet 74a. Boat Arrival Details. For the method of how the number of refugees and detainees was calculated from the total number of arrivals, see Appendix A. - 5 - Introduction Such perception is not new, and successive governments have been reluctant to accept uninvited refugees who arrived from the 1970s onwards.3 What is however remarkable is the observation that the Howard government frequently sought to justify
Load more

Recommended publications
  • Let Her Finish: Gender, Sexism, and Deliberative Participation in Australian Senate Estimates Hearings (2006-2015)
    Let Her Finish: Gender, Sexism, and Deliberative Participation In Australian Senate Estimates Hearings (2006-2015) Joanna Richards School of Government and Policy Faculty of Business, Government and Law University of Canberra ABSTRACT In 2016, Australia ranks 54th in the world for representation of women in Parliament, with women ​ accounting for only 29% of the House of Representatives, and 39% of the Senate. This inevitably ​ inspires discussion about women in parliament, quotas, and leadership styles. Given the wealth of research which suggests that equal representation does not necessarily guarantee equal treatment, this study focuses on Authoritative representation. That is, the space in between winning a seat and making a difference where components of communication and interaction affect the authority of a speaker.This study combines a Discourse Analysis of the official Hansard transcripts from the Senate Estimates Committee hearings, selected over a 10 year period between 2006 and 2015, with a linguistic ethnography of the Australian Senate to complement results with context. Results show that although female senators and witnesses are certainly in the room, they do not have the same capacity as their male counterparts. Both the access and effectiveness of women in the Senate is limited; not only are they given proportionally less time to speak, but interruption, gate keeping tactics, and the designation of questions significantly different in nature to those directed at men all work to limit female participation in the political domain. As witnesses, empirical measures showed that female testimony was often undermined by senators. Results also showed that female senators and witnesses occasionally adopted masculine styles of communication in an attempt to increase effectiveness in the Senate.
    [Show full text]
  • The Hon. Scott Morrison MP Senator the Hon. Marise Payne Senator The
    The Hon. Scott Morrison MP Prime Minister Senator the Hon. Marise Payne Minister for Foreign Affairs Minister for Women Senator the Hon. Anne Ruston Minister for Families and Social Services Minister for Women’s Safety Manager of Government Business in the Senate JOINT MEDIA RELEASE Wednesday 7 April 2021 AUSTRALIANS INVITED TO HELP SHAPE A FUTURE FOR WOMEN FREE FROM VIOLENCE The Morrison Government has opened public consultation on the next National Plan to reduce family, domestic and sexual violence in Australia. From tonight, all Australians can add their views and voices to the consultation via an online questionnaire, available on the Engage website. Women who have experienced violence, family safety advocates, service providers and other stakeholders will also be invited to take part in a two-day National Women’s Safety Summit to be held on 29 and 30 July. The Summit was agreed as part of the establishment of the Taskforce on Women’s Safety in December last year. The summit will include keynote addresses, panel discussions and workshops focused on issues affecting women’s safety as well as a series of roundtables that will contribute insights and help determine priorities for the next National Plan. These roundtables will focus on issues including prevention of violence and sexual violence, online abuse, coercive control, policing and justice systems, respectful relationships, frontline service responses and violence experienced by Aboriginal and Torres Strait Islander women. Prime Minister Scott Morrison said the National Women’s Safety Summit is vital to build on the existing National Plan in a way that addresses evolving issues and protects women and children from the scourge of family, domestic and sexual violence.
    [Show full text]
  • Improvements in Family Law Proceedings
    Joint Select Committee on Australia’s Family Law System Improvements in family law proceedings Second interim report March 2021 © Commonwealth of Australia ISBN 978-1-76093-183-4 (Printed Version) ISBN 978-1-76093-183-4 (HTML Version) This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 4.0 International License. The details of this licence are available on the Creative Commons website: https://creativecommons.org/licenses/by-nc-nd/4.0/. Printed by the Senate Printing Unit, Parliament House, Canberra. Members Chair Hon Kevin Andrews MP Menzies, VIC Deputy Chair Senator Pauline Hanson PHON, QLD Members Dr Anne Aly MP Cowan, WA Senator Claire Chandler LP, TAS Dr Fiona Martin MP Reid, NSW Senator Matt O'Sullivan LP, WA Mr Graham Perrett MP Moreton, QLD Senator Helen Polley ALP, TAS Ms Zali Steggall OAM MP Warringah, NSW Mr Terry Young MP (from 7.09.2020)1 Longman, QLD Participating Member Senator Larissa Waters AG, QLD Senator Malcolm Roberts PHON, QLD Former Members Senator Tim Ayres (19.09.2019–15.10.2019) ALP, NSW Mr Llewellyn (Llew) O’Brien MP (until 24.02.2020) Wide Bay, QLD Department of the Senate Ph: 02 6277 3439 PO Box 6100 Fax: 02 6277 5809 Parliament House E-mail: [email protected] Canberra ACT 2600 Internet: www.aph.gov.au/select_familylaw 1 House of Representatives; Votes and Proceedings, No. 71 Tuesday, 6 October 2020, p. 1224. See also, House of Representatives, Proof Hansard, 6 October 2020, p. 4. The House of Representatives appointed Mr Young on 6 October 2020 with his appointment being effective from 7 September 2020.
    [Show full text]
  • Consequences of US Trade Policy on EU-US Trade Relations and the Global Trading System
    STUDY Requested by the INTA committee Consequences of US trade policy on EU-US trade relations and the global trading system Policy Department for External Relations Directorate General for External Policies of the Union PE 603.882 - November 2018 EN DIRECTORATE-GENERAL FOR EXTERNAL POLICIES POLICY DEPARTMENT STUDY Consequences of US trade policy on EU-US trade relations and the global trading system ABSTRACT The Trump Administration’s trade policy is driven by the belief that previous Administrations have let other countries take advantage of the United States for foreign policy reasons, as demonstrated by America’s more open trade regime and its trade deficits. It is determined to end this perceived imbalance by demanding reciprocity instead, and is willing to use tough tactics to achieve this through strict enforcement of its procurement and trade defense law; expansive tax provisions; bringing the WTO dispute settlement to a halt; withdrawing from and forcing others to renegotiate existing bilateral and multilateral agreements; adopting a novel “national security” argument to justify breaking WTO tariff commitments for steel, aluminum and possibly autos; and enacting punitive tariffs on billions of dollars of imports from China, possibly threatening a trade war. The scenarios for U.S.-EU trade relations as well as the global trading system are anything but rosy. The EU can stand up to the Administration’s “bullying,” or it can take advantage of America’s need for a “re- balancing” to build its own stature by taking simple steps to improve EU-U.S. trade, forging a way forward in the WTO, and providing necessary leadership to address the dangers China’s economic system poses to the global trading order.
    [Show full text]
  • Lord Mayoral Minute Page 1
    THE CITY OF NEWCASTLE Lord Mayoral Minute Page 1 SUBJECT: LMM 28/05/19 - FEDERAL ELECTION RESULTS MOTION That City of Newcastle: 1 Acknowledges the re-election of the Prime Minister, the Hon. Scott Morrsion MP, and the Federal Liberal National Government, following the 18 May 2019 poll; 2 Notes new and returning Ministerial portfolio responsibilities for a number of Minister’s with responsibility for policy regarding local government, including new Minister for Regional Services, Decentralisation and Local Government, the Hon. Mark Coulton MP, Deputy Prime Minister and Minister for Infrastructure, Transport and Regional Development, the Hon. Michael McCormack MP and Minister for Population, Cities and Urban Infrastructure, the Hon. Alan Tudge MP; 3 Congratulates the following local Hunter Members of Parliament on their re-election: • Sharon Claydon MP, Federal Member for Newcastle • Pat Conroy MP, Federal Member for Shortland • Joel Fitzgibbon MP, Federal Member for Hunter • Meryl Swanson MP, Federal Member for Paterson 4 Commits to continuing our collaborative working relationship with the Federal Government and the Federal Labor Opposition for the benefit of the people of the City of Newcastle. BACKGROUND: Following the 2019 Federal election, the Morrison Liberal National Government has formed a majority government. Across Newcastle and the Hunter, all sitting Members of Parliament were returned to represent their communities in the nation’s Parliament. Australians have re-elected our Government to get back to work and get on with the job of delivering for all Australians as they go about their own lives, pursuing their goals and aspirations for themselves, their families and their communities.
    [Show full text]
  • Senator the Hon Concetta Fierravanti-Wells Hon Sharon Bird
    Senator the Hon Concetta Hon Sharon Bird MP Fierravanti-Wells Federal Member for Cunningham Liberal Senator for New South Wales Stephen Jones MP Federal Member for Whitlam Senator the Hon Marise Payne Minister for Women M1 49, Parliament House Canberra ACT 2600 Senator the Hon Anne Ruston Minister for Families and Social Services MG 60, Parliament House Canberra ACT 2600 Dear Ministers, We are writing to support the Illawarra Women’s Health Centre’s proposal to establish a community- led first-in-Australia Domestic and Family Violence Trauma Recovery Centre. We strongly support this proposal. The Centre, an evidence based multi sectoral integrated service will transform domestic and family violence support services. Domestic and family violence is a major public health issue. Approximately one in six women in Australia have experienced physical and/or sexual violence by a current or previous partner. The Australian Institute of Health and Welfare reports that domestic violence is the greatest health risk factor for women aged 25 to 44. The impact of violence is substantial and long-lasting. Experiences of family and domestic violence are linked to poor mental and physical health outcomes, which can persist long after the violence has ceased. Moreover, women affected by family and domestic violence often face legal and financial challenges, which can lead to poverty and homelessness. Post-Traumatic Stress Disorder and Complex PTSD are a very real outcome for women and children who have been exposed to family and domestic violence and abuse. Analysis from the Australian Longitudinal Study on Women's Health shows that women who have untreated trauma or PTSD spend a minimum of 10% more per year on General Practitioners alone.
    [Show full text]
  • Australia's International Future
    perspectives Australia’s International Future Michael Wesley J u l y 2 0 0 9 The Lowy Institute for International Policy is an independent international policy think tank based in Sydney, Australia. Its mandate ranges across all the dimensions of international policy debate in Australia – economic, political and strategic – and it is not limited to a particular geographic region. Its two core tasks are to: • produce distinctive research and fresh policy options for Australia’s international policy and to contribute to the wider international debate. • promote discussion of Australia’s role in the world by providing an accessible and high quality forum for discussion of Australian international relations through debates, seminars, lectures, dialogues and conferences. Lowy Institute Perspectives are occasional papers and speeches on international events and policy. The views expressed in this paper are the author’s own and not those of the Lowy Institute for International Policy. Australia’s international future Michael Wesley Today [1 July 2009] is my first day as Executive Director of the Lowy Institute for International Policy. It is a privilege and an honour to lead an organisation that has, in a very short time, established itself at the very centre of public discussion and debate on the international policy issues that face this country. That achievement is a tribute to the vision of Frank Lowy, to the stewardship of my predecessor Allan Gyngell, and to the talent of the staff and fellows of the Institute. Today I want to talk about why institutions such as this are not simply a luxury or an affectation.
    [Show full text]
  • Policy Brief
    POLICY BRIEF August 2009 MICHAEL WESLEY Australia’s Poisoned Executive Director Tel: +61 2 8238 9030 Alumni: International [email protected] Education and the Costs to Australia W h a t i s t h e p r o b l e m ? International education is Australia’s third-largest export market, earning over $15 billion in export income annually. But as tertiary institutions face incentives to maximise income from foreign students, some have lowered language standards and cut costs on student welfare and service provision. The result is that many foreign students in Australia face problems of social isolation, labour exploitation, and criminal violence. Attacks on foreign students and the poor standards of some education providers have created diplomatic problems for Australia in important bilateral relationships.1 Students who return to their countries with negative experiences could become a poisoned alumni, conveying critical attitudes in other countries about Australian society and poor impressions about Australia’s reputation as an education provider. They could ultimately destroy a strong export product. W h a t s h o u l d b e d o n e ? The roots of this problem need to be addressed or it will worsen. Public funding for tertiary education should be reviewed to remove the incentive for institutions to maximise earnings from international education. LOWY INSTITUTE FOR Education institutions need to be subjected to much greater oversight of INTERNATIONAL POLICY quality, affordability, value for money, and provision of student welfare. 31 Bligh Street Measures to address the inequality of treatment and entitlements between Sydney NSW 2000 domestic and international students should be addressed.
    [Show full text]
  • Download Brochure
    From its very beginnings, Griffith University anticipated the The Queensland Art Gallery | Gallery of Modern Art importance of Asia; it was the first Australian University to (QAGOMA) is delighted to mark this important milestone for offer degrees in Modern Asian Studies. Griffith University Perspectives: Asia. Thanks to a strong partnership with our has a long-standing commitment to cultivating good relations colleagues at the Griffith Asia Institute and a consistently between Australia and its neighbours in the Asia Pacific. The high calibre of speaker, Perspectives: Asia is one of the most Griffith Asia Institute continues this innovative approach, dynamic platforms for discussion about the region to which pursuing ground breaking research that has, as its focus, the Australia belongs. Asia Pacific region. So much of what QAGOMA does is contingent on our The Perspectives: Asia public seminars were launched in position in the Asia Pacific, and we are keenly aware of our 2005 by the Griffith Asia Institute and the Queensland Art responsibility to engage with a region that is increasingly at Gallery’s Australian Centre of Asia Pacific Art – to explore the centre of international affairs. issues of contemporary culture, politics and society in our region. Ten years on, the series continues to grow and the The Gallery turned the focus of its attention to Asia and the calibre of speakers is outstanding. I personally have enjoyed Pacific in the late 1980s, when it conceived ‘The Asia Pacific listening to thought leaders and experts share their views on Triennial of Contemporary Art’ (APT). First staged in 1993, issues from regional history to the politics of the day.
    [Show full text]
  • ABC Annual Report 1997–1998
    Australian Broadcasting Corporation annual report 1997–98 Australian Broadcasting Corporation annual report 1997–98 Australian Broadcasting Corporation annual report 1997–98 contents ABC Corporate Profile charter ABC Charter inside back cover Mission Statement 1 ABC Services 2 The functions and duties which Parliament has given to the ABC are set out in Significant Events 4 the Charter of the Corporation (ss6(1) and (2) of the Australian Broadcasting Priorities – Performance Summary 6 Corporation Act 1983). Financial Summary 10 6(1) The functions of the Corporation are — ABC Board Members 12 (a) to provide within Australia innovative and comprehensive broadcasting services of a ABC Organisation 14 high standard as part of the Australian broadcasting system consisting of national, Executive Members 15 commercial and community sectors and, without limiting the generality of the foregoing, to provide— Statement by Directors 16 (i) broadcasting programs that contribute to a sense of national identity and inform and entertain, and reflect the cultural diversity of, the Australian community; and Review of Operations (ii) broadcasting programs of an educational nature; Regional Services 21 (b) to transmit to countries outside Australia broadcasting programs of news, current Feature: Radio and Television Audiences 25 affairs, entertainment and cultural enrichment that will— National Networks 28 (i) encourage awareness of Australia and an international understanding of Australian News and Current Affairs 39 attitudes on world affairs; and Program Production 42 (ii) enable Australian citizens living or travelling outside Australia to obtain Enterprises 44 information about Australian affairs and Australian attitudes on world affairs; and Symphony Australia 47 (c) to encourage and promote the musical, dramatic and other performing arts in Human Resources 51 Australia.
    [Show full text]
  • At Any Time in Any Place in Any Situation
    in any place at any time in any situation Annual Report2005 Australian Broadcasting Corporation ABC services of all Australians via reached an estimated75% television, radio and online There are now 1.7 million pages of information rich ABC Online content at www.abc.net.au ABC radio weekly metropolitan audience reach 3.766 millionor 34% ABC weekly metropolitan reach of TV8.8 million or 64.2% and weekly regional reach of 3.9 million or 62.6% ABC Online reaches 14.4% of Australia’s active Internet population 90% of Australians continue to believe the ABC provides a valuable service to the community. 1 New Australian-made TV programs launched include Spicks and Specks, Talking Heads, How The Quest Was Won, Beat The Chef, Collectors, Second Opinion, Blue Water High and Outback House We launched digital radio services digJAZZ and digCOUNTRY Radio Australia now available via 200 local re-broadcasters in 40 countries, shortwave broadcasts, satellite services and a 24-hour FM network ABC2 was launched... the ABC’s second free-to-air digital television channel ABC Asia Pacific television is seen in 39 countries, retransmitted by 155 pay-TV operators, in more than 200 000 hotel rooms and available in 9 million homes ABC produced 4 476 hours of Australian television content, including more than 2 221 hours of news and current affairs 40 ABC Shops and 79 ABC Centres through out Australia and online generated $10.6 million net profit which was returned to programming last year ABC had total revenues of $959m from ordinary activities with $1.026 billion in total assets 2 abc any time | any place reaches australians radio television online shops international broadcasting 3 Annual Report 2004–05 Radio The ABC has four national radio networks —Radio National, ABC Classic FM, triple j and ABC NewsRadio—as well as 60 Local Radio stations around Australia, and three Internet music-based services, dig, digJAZZ and digCOUNTRY.
    [Show full text]
  • 2. the Unfinished Business of Nation-Building, John Butcher 7 3
    Australia Under Construction nation-building – past, present and future Australia Under Construction nation-building – past, present and future Edited by John Butcher Published by ANU E Press The Australian National University Canberra ACT 0200, Australia Email: [email protected] This title is also available online at: http://epress.anu.edu.au/auc_citation.html National Library of Australia Cataloguing-in-Publication entry Title: Australia under construction : nation-building : past, present and future / editor, John Butcher. ISBN: 9781921313776 (pbk.) 9781921313783 (online) Series: ANZSOG series Subjects: Federal government--Australia. Politics and culture--Australia. Australia--Social conditions. Australia--Economic conditions. Australia--Politics and government. Other Authors/Contributors: Butcher, John. Australia and New Zealand School of Government. Dewey Number: 320.994 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying or otherwise, without the prior permission of the publisher. Cover design by John Butcher. Printed by University Printing Services, ANU Funding for this monograph series has been provided by the Australia and New Zealand School of Government Research Program. This edition © 2008 ANU E Press John Wanna, Series Editor Professor John Wanna is the Sir John Bunting Chair of Public Administration at the Research School of Social Sciences at The Australian National University. He is the director of research for the Australian and New Zealand School of Government (ANZSOG). He is also a joint appointment with the Department of Politics and Public Policy at Griffith University and a principal researcher with two research centres: the Governance and Public Policy Research Centre and the nationally- funded Key Centre in Ethics, Law, Justice and Governance at Griffith University.
    [Show full text]