Anywhere but Here: Locating the Border and Narrating Asylum Seekers under Australia’s Policy of Territorial Excision
Anthea Vogl Faculty of Law, McGill University, Montréal November 2010
A thesis submitted to McGill University in partial fulfillment of the requirements of the degree of a Masters of Law.
© Anthea Vogl, 2010
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Even the linking of stars is a lie. But for while now let’s be happy to believe the symbol. That’s enough.1
1 R.M. Rilke, Duino Elegies and the Sonnets to Orpheus, trans. A. Poulin (Boston: Houghton Mifflin, 1977), First Series, Sonnet No. 11.
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Table of Contents ABSTRACTS ...... 4 ACKNOWLEDGEMENTS ...... 5 INTRODUCTION ...... 6 METHODOLOGY ...... 12 CHAPTER ONE ...... 17 SECURITIZING MIGRATION: THE BORDER-AS-BARRIER, THE NATION STATE AND THE UNDOCUMENTED MIGRANT ...... 17 INTRODUCTION ...... 17 PART ONE - BORDERS AND/AS SECURITY ...... 20 PART TWO - BORDERS REAL AND IMAGINED...... 29 PART THREE - NECESSARY THREATS: UNDOCUMENTED MIGRANTS AT THE BORDER ...... 37 CONCLUSION ...... 42 CHAPTER TWO ...... 44 PINNING WAVES UPON THE SAND: LOCATING AND NARRATING THE BORDER WITHIN AUSTRALIA’S POLICY OF TERRITORIAL EXCISION ...... 44 INTRODUCTION ...... 44 PART ONE - THE POLICIES OF TERRITORIAL EXCISION & INTERDICTION IN AUSTRALIA: AN OVERVIEW ...... 47 PART TWO - SEARCHING FOR A BORDER: INSIDES AND OUTSIDES IN THE POLICY OF TERRITORIAL EXCISION...... 56 PART THREE - FACTS ON THE GROUND: THE GEOGRAPHY AND FUNCTIONS OF THE TERRITORIAL BORDER OUTSIDE OF SECURITIZATION DISCOURSES ...... 68 CONCLUSION ...... 84 CHAPTER THREE...... 87 THE LIVES OF OTHERS: GOOD REFUGEES AND BAD ASYLUM SEEKERS...... 87 INTRODUCTION ...... 87 PART ONE - ONSHORE ASYLUMS SEEKERS: CONTESTING SOVEREIGNTY AT THE BORDER 89 PART TWO - GOOD REFUGEES, BAD ASYLUM SEEKERS ...... 97 Asylum seekers as economic migrants as asylum seekers ...... 99 Too much agency; too much money; too much mobility...... 105 Genuine asylums seekers behaving badly...... 109 PART THREE - ANYWHERE BUT HERE: THE GEOGRAPHY OF GENUINE ASYLUM SEEKING ...... 113 CONCLUSION ...... 125 CONCLUSION ...... 127 APPENDIX A:...... 130 BIBLIOGRAPHY...... 131
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ABSTRACTS
This thesis argues that the securitization of migration is a discourse that has gained a near monopoly over how the physical spaces of the territorial border are imagined and how the border itself is understood as a site of exclusion and control. Narratives about who undocumented people are and why they arrive at the border play a central role in justifying the anxious regulation of the border and migration as a national security issue. Taking Australia’s policy of territorial excision as a representative instance of border policy that is dictated and defined by the securitization of migration, this thesis traces the various and over-determined narratives of the territorial border and the undocumented person that were articulated in the parliamentary debates surrounding this policy. It argues against securitization’s constructions of these subjects, to show that neither the border nor the undocumented migrant exist independently of the narratives that constitute them. These narratives work not only to justify the exclusion of undocumented people at the border as sensible and legitimate, but also actively obscure and discredit other ways of imagining people who arrive at the border, as well as the functions and spaces of territorial borders.
Ce mémoire soutient que la sécurisation de la migration est un discours qui a obtenu le quasi-monopole sur la manière de percevoir l’espace physique des frontières territoriales ainsi que la compréhension de la frontière elle-même en tant que site d’exclusion et de contrôle. Les narrations portant sur l’identité des sans-papiers et les raisons qu’ils peuvent avoir d’arriver à la frontière jouent un rôle central pour justifier le fait que la réglementation de la frontière et de la migration est une question de sécurité nationale. Prenant la politique australienne d’excision territoriale comme exemple de politique frontalière dictée et définie par la sécurisation de la migration, ce mémoire analyse les discours divers et passionnés sur la frontière territoriale et les sans-papiers qui ont été articulés dans les débats parlementaires ayant eu lieu autour de la formation de cette politique. Elle plaide contre les constructions de sécurisation de ces sujets démontrant que ni la frontière, ni le migrant sans-papier n’existe indépendamment des discours qui les constituent. Ces discours non seulement œuvrent à la justification de l’exclusion des sans-papiers à la frontière comme étant sensée et légitime, mais de plus ils masquent et discréditent les autres manières de percevoir les gens qui arrivent à la frontière ainsi que les fonctions et les espaces des frontières territoriales.
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ACKNOWLEDGEMENTS
Unlike many other endeavors, the writing of a thesis comes with the opportunity to thank all those who have played a part in bringing about its completion.
I would firstly like to thank my supervisor, Robert Leckey, for his support and thoughtful guidance throughout the year. Thank you also to Shauna Van Praagh, François Crépeau, Kim Brooks, and Desmond Manderson not only for warmly welcoming me into the faculty, but for making my stay in Montréal a continuously intellectually rich, expansive, and happy one.
Thank you to Samuel Singer, Karen Crawley for being constant companions on the journey, their generous editing and comments, and discussions on any and every topic; to Mark Elsworthy for being the perfect partner in crime and constant support and friendship; to Suzanne Bouclin; to the Graduate Programs Office staff at McGill for all of their assistance; and to the staff in all of the libraries in which I took up residence, for their generous help and quiet company.
Finally, Anthony Giddens’ shorthand definition of globalization is “the intensification of worldwide social relations which link distant localities in such a way that local happenings are shaped by events occurring many miles away and vice versa.”1 Although it is a definition that has been widely and appropriately critiqued, it captures the nature of the relationships I have been able to maintain with my far-flung network of friends and loved ones. Amongst them are my parents, Shahla and Edward; my brother, Martin; my grandmother, Batool Danesh; Joanne Ball; Robyn Higgins; and finally, for being cherished and unstinting sources of love, support, and truly epic skype dates, Jemima Mowbray and Claire Van Vuuren. I am endlessly grateful.
1 Anthony Giddens, The Consequences of Modernity (Stanford: Stanford University Press, 1990) at 43.
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INTRODUCTION
The Australian Migration Act 1958 (Cth.) defines the migration zone as “the area consisting of the States, the Territories, Australian resource installations and
Australian sea installations.”1 In May of 2006 the Australian government attempted an extraordinary experiment. In the name of border control and national security, the government introduced a bill into parliament that attempted to excise the entire country from its own “migration zone.”2 As a result of the proposed excision, any person who reached any Australian territory by sea without authorization would be classified as a “designated unauthorised arrival”3 and held to be outside of Australia’s migration zone. Such persons would, amongst other things, be prevented from accessing Australia’s existing onshore visa application process set out in the
Migration Act 1958 (Cth.). They would also be barred from administrative and judicial review of migration decisions guaranteed by that Act.4 Although the government held a majority in both houses of parliament, the then Prime Minister John Howard withdrew the bill just before it reached the upper house of parliament. The dissent of one government senator meant that the bill would face certain defeat and halted the government in its bold and grammatically impossible attempt to excise Australia from itself.5
1 Migration Act 1958, (Cth.), s. 5 [Migration Act]. 2 Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 (Cth.). See also Department of Immigration and Citizenship, Media Release, “Minister Seeks to Strengthen Border Measures,” 11 May 2006; and Explanatory Memorandum, Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 at para. 1. 3 Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 (Cth.), s. 5F. 4 See Sue Harris Rimmer, Commonwealth (Austl.), “Bills Digest: Migration Amendment (Designated Unauthorised Arrivals) Bill 2006,” Law and Bills Digest Section, No. 138 (2005–06). 5 “Howard backs down on migration law, as more boatpeople arrive” Australian Associated Press (14 August 2006).
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Although the bill was never reintroduced into parliament and consequently, the entire
Australian mainland was not removed from Australia’s “migration zone,” the remarkable policy of excising segments of Australian territory from the migration zone as a form of border control has been in place in Australia since 2001. Prior to the
2006 bill, a number of successful amending acts had resulted in the excision of all territorial islands that are situated across the top of the Australian mainland, as well as a number of territorial islands located on common people-smuggling routes for those trying to reach Australia via Indonesia or Sri Lanka.6 Excision in these instances functions similarly to the failed excision bill of 2006. That is, excision entails that any person travelling to Australia by sea who first reaches an excised offshore island is denied access to the statutory visa and refugee application process and existing judicial and administrative review mechanisms.7 Despite three federal elections since
2001 and a change of government in 2007, the policy of excision has not been repealed or revised and the designated offshore islands remain excised from the
Australian migration zone.8
The idea of a government excising its entire sovereign territory from its own migration system is a startling one, to say the least. The Australian government’s justification for the excision, being to protect Australia’s borders and to prevent and deter
6 A detailed account of these excisions and the legislative framework that introduced territorial excision in Australia follows in Chapter Two; however, for a comprehensive overview of the excision of territory in Australia up until 2006, see Moira Coombs, Commonwealth (Austl.), “Excising Australia: are we really shrinking?” Law and Bills Digest Section, Research Note No. 5, (2005). 7 Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 (Cth.), s. 10. See also Australian Human Rights Commission, “Immigration detention and offshore processing on Christmas Island: Report” (2009). 8 Department of Immigration and Citizenship, Commonwealth (Austl.), “Fact Sheet 81 - Australia's Excised Offshore Places”, online:
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undocumented persons from entering sovereign Australian territory, arouses far less surprise. By now it has become almost banal to observe that since the September 11 attacks in New York City, Western states have staged 'crack downs' on border control, and that tracts of new border regulation legislation have been written in the name of responding to the apparently self-evident threat posed by the presence of unauthorized migrants in national territory.9 The policy of excision and its justification, which is framed in terms of the safety of the nation, fall squarely within the logic of what has been identified as the discursive securitization of migration, which I will address presently.
My aim in this thesis is to explore the policy of excision as a representative instance of migration and border policy that is dictated and defined by the logic of the securitization of migration. The securitization of migration, crudely stated, is the discursive process by which the threats, misgivings and dangers facing the state are constructed as a direct consequence of the “problem” of migration. Further, within that discursive phenomenon, the sensible response to this problem is to protect the state by restricting and controlling migration, to prevent the “outside” from coming “inside.”10
I begin from an understanding of discourses as common modes of thought and expression, which unify and actively produce rather than disinterestedly reproduce the things of which they speak.11 Accordingly, I am interested in how securitization of
9 Even though many of those who were accused of “terrorist” acts were in fact born within the sovereign territory of the targeted state or were legally within state limits. This contradiction is explored more fully in Chapter One. 10 Didier Bigo, “Security and Immigration: Toward a Critique of the Governmentality” (2002) 27 Alternatives 63 at 79-81. 11 Roger Cotterrell, “Law and Sociology - Constitution and Confrontations of Disciplines” in Philip A. Thomas, ed., Legal Frontiers (Aldershot: Dartmouth Publishing, 1996) 10 at 12.
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migration discourse “speaks of” borders, undocumented persons and refugees, with a particular focus on the onshore asylum seeker.
My core contention is that the discourse of the securitization of migration as it functions at the site of the border has achieved something close to a monopoly over the construction of the figure of the undocumented person and the refugee. It has met similar success over the nature and functions of territorial borders themselves. I argue that these visions of the border, the onshore asylum seeker, and the refugee are vastly overdetermined and incomplete constructions; they not only serve to reinforce the core assumptions built into securitization discourse, but also actively foreclose the possibility of alternative ways of imagining and understanding each of the above subjects.
This thesis’ central site of inquiry is the history, justification, and implementation of the policy of territorial excision in Australia. In the chapters that follow, with reference to the debates surrounding the implementation of territorial excision in
Australia, it is my aim to explore how the border, the undocumented person and the refugee are narrated by securitization of migration discourse. In so doing, I seek to identify and make explicit the unacknowledged assumptions and modes of expression that constitute this discourse. Specifically, I aim to show that there are not only other stories that compete with those narrated according to the logic of the securitizing migration, but that these other stories, too, make sense.
In the first chapter of this thesis, I outline the discursive basis and content of the
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securitization of migration, particularly as it has come to operate at the borders of developed nation states. Drawing on scholarly work from across a range of disciplines, including law, sociology and political science, I conduct a short review of the literature, describing and critiquing the process by which migration has become increasingly securitized over the last two decades. I do not attempt to cover this ever- burgeoning field of scholarship, but rather to outline the main discursive claims made in justifying the securitization of migration, which inform my analysis in the chapter that follow.
In the second chapter, I reconstruct and analyze the border, as it has been narrated and imagined under the policy of excision, in order to make two central claims: that constructions of the border under the policy of excision mirror the logic of the securitization of migration; and that our sense of the functions, geography, and nature of the border alter and expand when the physical space of the border is imagined and described outside of the dictates of securitization. Security discourse’s view of the border posits it as a fixed and natural line from which to define and defend the nation.
Against this view, I argue that the space of the border is both unstable and utterly contingent. I use the policy of excision and its effects on the space of the border to reveal that the nature, meaning, and significance of territorial borders depend on who is approaching them and for what purpose. I also contend that the policy of excision, rather than securing a self-evident and singular territorial border, represents a sheepish concession that the border and that the migration that occurs there lend themselves remarkably poorly to the discursive claim that they can be and are completely controlled. The redrawing and redefining of the Australian border reveals that the
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space of the territorial border is neither geographically fixed nor natural, and in so doing undermines securitization’s construction of the border as the most obvious and sensible place from which to delimit and protect the nation.
In the third and final chapter I examine the precise ways in which the discourse of the securitization of migration narrates the figure of the onshore asylum seeker and the reasons why the onshore asylum seeker poses such a sharp threat to the discourse of completely securitized migration. I argue that securitization’s constructions of onshore asylums seekers function above all to discredit onshore, undocumented persons in order to deny them access to the category of the legitimate refugee. I go on to demonstrate how the delegitimization of the onshore asylum seekers occurs by reference to an imagined “good” refugee who, even within securitization of migration discourses, is still legitimate and still exists somewhere. This chapter’s central claim is that, in line with the logic of the securitization of migration, the location of the undocumented person has become a crucial determinant of his or her credibility and a central element in the narratives, which determine the authenticity of asylum claims.
Specifically, the geography of the genuine refugee is such that “good” refugees are primarily located elsewhere, at a distance from territorial borders and are therefore unable to disturb securitization of migration’s objective of complete control of territorial borders and legitimate exclusion of all undocumented persons.
Throughout this thesis, I predominantly use the terms “undocumented person,
“undocumented migrant,” or “irregular migrant” to refer to those who are within the territory of a state without prior or valid legal authorization. I use the terms “asylum
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seeker” or “onshore asylum seeker” to refer to a particular subset of undocumented persons, being those who are undocumented persons but are also seeking asylum from within the borders of a particular state or intend to do so. As Carens observes, all terminology used to refer to irregular migrants, including that which I have chosen to use here, “presupposes too much about the normative conclusions we should reach.”12
Indeed, questions about who is “illegal” will always depend on who is doing the asking, and it is usually assumed to be the state that is doing so.13 The same is true of the all-encompassing label “undocumented person,” as the descriptor “undocumented” may be accurate vis-à-vis one particular state, and not in regards to another, where a person may have valid authorization to reside. I am aware of the inadequacies of this nomenclature. Although I have sought to use the terms that I feel are as least laden with value as possible, I am conscious that avoiding all value in language choice is not possible.14
Methodology Exploring how borders and migrants are “narrated” and “constructed” signals a theoretical approach to the law that refuses an understanding of the law as a series asocial or isolated facts. This thesis situates itself within two overlapping bodies of interdisciplinary scholarship, which, amongst other things, have in common an interest in the reciprocal relationship between the law and social reality, and in particular the role that the law plays in constituting reality. The first body of work that I have drawn upon in developing the objectives my thesis and its method falls under the banner of
12 Joseph H. Carens, “The Rights of Irregular Migrants” (2008) 22 Ethics & International Affairs 163 at 164. 13 Catherine Dauvergne, Making People Illegal: What Globalization Means for Migration and the Law (Cambridge: Cambridge University Press, 2008) at 15-17. 14 The labels will be analyzed and discussed in further detail in Chapter One.
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“law and society” scholarship, with a particular focus on law and language and narrative theory. The second area of scholarship that I have used to guide my theoretical approach is that of “law and geography,” which focuses on the law’s role in defining and producing physical places, and the interrelationship between law, space and discourse.
Both these areas of interdisciplinary scholarship have in common a foundational claim that disciplines are “neither fixed nor constant,” with the discipline of law posing no exception to this rule.15 They do not approach law as an unchanging discipline comprised of a body of unassailable rules and principles, which collectively determine the truth of things.16 Instead, those things that we identify as law are approached by law and society scholars as social phenomena, located and determined by historical context and embedded in social life.17 Once one abandons the conceit that disciplines are wholly distinct and discrete areas of inquiry, it becomes almost facile to observe that formal legal texts are not the only or most sensible way in which we understand and engage with the functioning of the law and its relationship to society.
15 Philip A. Thomas, “Introduction” in Philip A. Thomas, ed., Legal Frontiers (Aldershot: Dartmouth Publishing, 1996) 1 at 4. 16 Austin Sarat, “Vitality Amidst Fragmentation: On the Emergence of Postrealist Law and Society Scholarship” in Austin Sarat, ed., The Blackwell Companion to Law and Society (Oxford: Blackwell, 2004) 2 at 7. See also Felice Levine, “Goosebumps and ‘the search for signs of intelligent life’ in Sociolegal Studies: After Twenty Five Years” (1990) 24 Law and Society Review 24 at 23 (cited in Sarat, ibid.). 17 Cotterrell, supra note 11 at 11. Cotterrell argues that the idea that disciplines are social constructs might seem “from one point of view, obvious; yet much discussion (at least by legal scholars) of the relations between law and ‘other disciplines’ largely ignores these complicating factors in determining what interaction between disciplines actually can mean” (Ibid. at 11).
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There are direct methodological implications of maintaining that the law and its formal texts are not the most authoritative or sensible way of imagining the world and further, that studying the formal texts of the law is not even the best way to understand law itself.18 Recognizing the contingency of law upon the conditions and practices of society at large involves bringing different disciplines to bear upon and into conversation with each other.19 This insight lies at the heart of my method, which attempts to bring the insights of critical geography and law and language scholarship into conversation with the law’s approach to the regulation of migration, the border, and the undocumented migrant. I seek not only to make plain how and why the law imagines these subjects and spaces, but also to reveal the process as one of imagination and narrative and to show that there are alternatives ways of narrating and understanding each subject.
My choice of parliamentary debates and the policy of excision as the primary sources of analysis within this thesis is an attempt to locate and analyze the law and its assertions in a forum beyond formal legal texts. The endless transcripts of national parliamentary debate on any given topic initially seem like a dreadfully quotidian subject matter. This is especially the case in relation to the parliamentary debates I analyze here, since they frequently record the unenhanced and rhetorical aspects of a highly polarized and rehearsed debate about the treatment of undocumented boat
18 Boaventura de Sousa Santos, "Law: A Map of Misreading Toward a Post-Modern Conception of Law"(1987) 14 Journal of Law and Society 279. In The Rhetoric of Law, Sarat and Kearns account for the way in which law and legal relations dominate ways in which one imagines one’s self and one’s understanding of one’s relations to others, in that “[w]e have internalized law’s meanings and its representations of us so much that our own purposes and understandings can no longer be extricated from them”: Austin Sarat & Thomas R. Kearns, “Editorial Introduction” in Austin Sarat & Thomas R. Kearns, eds., The Rhetoric of Law (Ann Arbor: The University of Michigan Press, 1994) at 12-13. 19 Sarat, supra note 16 at 8.
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arrivals in Australia, which has dominated Australian politics for at least the last decade. I believe, however, that the debates’ value as a site of analysis is as a result of their status as everyday representations of the border and the undocumented person, as they were imagined and narrated within both houses of federal parliament. To paraphrase Mountz, my analysis of the parliamentary debates seeks to understand the unrepentantly mundane and everyday practices and performances of the state that lead to the exclusion of migrants at the border.20 This involves giving up “the ghostly emanations of the abstract” in favour of the mundane, the banal, the performative, and the prosaic.21 The parliamentary debates that occurred in relation to excision certainly fit this description and were a key site for the Australian state’s performance of both border control and the exclusion of undocumented migrants.
A range of different “border control” initiatives and legal reforms introduced in
Australia in the last decade capture the contradiction between the border as it has come to exist within migration and securitization discourses and the geographies and functions of borders themselves. Each of the various border control reforms in
Australia involve, either implicitly or explicitly, a debate about the nature and role of territorial borders and the significance of the arrival of undocumented person at the border. Each would have been worthy of exploration in this discussion about the nature of the physical border, the discourse surrounding it and the place of undocumented persons in relation to the border and security discourse. Here, however,
I have chosen to focus on the policy of excision because I believe it conveys these
20 Alison Mountz, Seeking Asylum: Human Smuggling and Bureaucracy at the Border (Minneapolis: Minnesota, 2010) at xxxii. 21 Joe Painter, “Prosaic Geographies of Stateness” (2006) 25 Political Geography 752.
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contradictions most patently. The excision of Australia’s outlying islands constituted a direct and unabashed intervention in the definition of the border, redefining it in certain circumstances and for certain undocumented people.
Within Australia’s policy of territorial excision, the border was narrated as a place that is geographically fixed and that can be fully secured by governments. Yet, as a result of the policy, the Australian government simply removed and redefined the border altogether for the purposes of limiting the rights of undocumented migrants seeking access to Australian territory. These startlingly bold and blatant contradictions and inconsistencies inherent in the policy of excision drew me to it as the focus of my inquiry.
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CHAPTER ONE Securitizing Migration: The Border-as-Barrier, the Nation State and the Undocumented Migrant
It would be lovely indeed if we could be made safe by something as simple and familiar as migration law.22
Introduction That nation states stridently assert the right and the duty to control and manage their territorial borders is neither a particularly new nor contentious observation. Borders have long been crucial sites from which the nation state is constituted. The increasingly prominent and amply-funded areas of governance and policy known as
“border control” or “border protection” are the contemporary manifestations of this largely taken for granted function of the nation state. Controlling the arrival and potential arrival of the undocumented person at the borders of the nation state is one of the key objectives of the securitization of migration.
An extensive amount of scholarship addressing the securitization of migration has been produced across a range of disciplines including but not limited to law, sociology, and political science. In conducting a short review of the literature describing and critiquing the processes by which migration has become securitized over the last two decades, I draw on work from a range of disciplines as well as from work that does not slot neatly into any particular discipline.23 I highlight some of the discursive assumptions made in order to justify the securitization of migration that
22 Catherine Dauvergne, “Security and Migration Law in a Less Brave New World (2007) 16 Social and Legal Studies 533 at 543. 23 For an interesting account of some of the interdisciplinary insights of “border studies” as a field of inquiry, see Jean-Pierre Cassarino, “Approaching Borders and Frontiers: Notions and Implications,” Research Reports 2006/03 (Florence: European University Institute, 2006). Cassarino notes that over the past decades, “border studies have become legion.”
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most plainly reveal the processes by which we have come to accept that regulation of migration is not only an issue relevant to national security, but that the effective control of migration is finally determinative of national security.
In outlining how the discourse of securitization of migration functions, I focus in this chapter on how the borders of nation states and the figure of the undocumented migrant are imagined within the discourse. In doing so, I identify and analyze three key elements of the discourse. First, the rhetoric of the securitization of migration relies primarily upon a narrative of the nation state that pits a safe and coherent interior against a dangerous and unstable outside. Within this vision of the nation, the geographical border is the crucial site, which divides the inside from the outside and thus, it is imagined as the principal and most logical point from which to delimit and protect the nation. Second, this vision of the nation state and border regulation has implications for what borders are imagined to actually do and how physical geographies of borders are imagined to be, neither of which corresponds with or encompasses the realities of territorial borders or their functions.24 The geography of the imagined border under securitization discourse is envisaged as fixed, stable, and completely controllable, which is contradicted by the geography and functions of borders themselves.
24 I am indebted to Alison Diduck for this formulation, which can be traced back to her observation that family law is written according to the families we live by (that is, an idealized nuclear family), rather than the families we live with. In current migration discourse, I think one could equally identify the borders we live by, as compared to those we live with, and argue that there is a significant gap between the two. In both instances, of imagined families as well as imagined borders, the ideal is a long way from the messier and more complex reality. Alison Diduck, Law’s Families (London: LexisNexis, 2003) at 20.
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Third and finally, I explore how undocumented migrants in particular feature within the securitization of migration discourse. I demonstrate that they pose a sharp but necessary threat to the constructions of the territorial border as an efficiently functioning barrier, which contains and delimits the nation state. Undocumented people are necessary to the securitization of migration as their potential arrival plays a crucial role in legitimizing border control rhetoric and policies implemented by national governments. Simultaneously, however, the actual arrival and entry without authorization of undocumented persons into the state interrupts the vision of a sealed and controllable geopolitical border and therefore, they must be narrated as subjects of control and exclusion.
The securitization of migration relies upon a conception of the nation that is fundamentally territorial. It answers the confounding question of ‘what is the nation?’ by confidently locating the definition of nation on national territory, and delimiting this definition by reference to the geographical border. The nation and its borders are perceived as places that are geographically contained and singular, and still, as
Fitzpatrick puts it, as places “of blood and soil.”25 Under the securitization of migration, the successes and (abject) failures of complete control of all national borders have become the measure of the nation’s coherence, the safety of those who rightfully live within national territories, and the measure of the capability of the sovereign itself.
25 Peter Fitzpatrick, Modernism and the Grounds of Law (Cambridge: Cambridge University Press, 2001) at 129-136. See also Peter Fitzpatrick, 'Globalisation and Humanity of Rights’, 2000 (1) Law Social Justice & Global Development Journal, online:
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Part One - Borders and/as Security
The securitization of migration is the process by which the dangers and misgivings facing the state are constructed as a direct consequence of the “problem” of migration.26 Further, the sensible response to these problems is to restrict and control migration and specifically, to pursue and prevent the entry of the outsider.27
Sociologist Didier Bigot, who has extensively critiqued and theorized contemporary approaches to internal security in Europe, argues that the securitization of migration depends upon the myth of the bounded sovereign state and on the idea that the integrity of the nation can be maintained by keeping the national “inside” separate from the treacherous “outside.”28
The conception of the nation-state as a container, which serves to clearly differentiate one polity from another, entails that our – that is, the national citizens’ – thoughts and identities are ordered by concepts such as territoriality, geographical limits, entries, and exits.29 The conception of the state as a tightly contained body justifies defining national identity on the basis of territoriality and the demarcation of borders, and in turn, the fortification and protection of such borders.30
Bigot’s explication of the securitization of migration sits comfortably within a body of work that has identified the rhetorical twinning of national security objectives with strict(er) regulation of the border, particularly (but certainly not only) since the
26 Bigo, supra note 10 at 79. 27 Ibid. at 81. 28 Ibid. at 65. 29 Ibid. 30 Ibid. at 67.
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beginning of the “war on terror” and the September 11 attacks on the World Trade
Centre in 2001.31 Scholars from a range of disciplines have noted the now almost- quotidian fact that sweeping amendments to migration laws and border control practices were one of the dominant and immediate “security” responses of Western governments to the events of September 11.32
It is important to underline from the outset that the linking of state security with the control and exclusion of non-citizens at the border is not a recent discursive phenomena.33 The idea that sovereignty by definition entails that liberal democracies retain the right to control who enters their territory and on what terms they do so is one of the most widely accepted and commonly recited refrains of modern nation
31 See e.g. Dauvergne, supra note 22 at 533-534. Dauvergne catalogues some of these responses in more detail, writing that: The 2001 attacks were followed almost immediately by a crackdown on movement across American borders, which included contested measures such as a registration requirement for categories of immigrants living in the United States and heightened scrutiny of potential asylum seekers from predominantly Muslim states. The London bombings of the summer of 2005 had similar political results… Within weeks of the July attacks, Prime Minister Blair had announced an intention to crack down on foreigners, even if amendments to the Human Rights Act were required. Ibid. 32 See generally Audrey Macklin, "Borderline Security" in R. Daniels et al., eds., The Security of Freedom: Essays on Canada’s Anti-Terrorism Bill (Toronto: University of Toronto Press, 2001) 383; Ben Golder, Victoria Ridler & Illan Rua Wall, “The Politics of the Border/The Borders of the Political” (2009) 20 Law & Critique 105; Didier Bigo, “Detention of Foreigners, States of Exception, and the Social Practices of Control of the Banopticon” in Prem Kumar Rajaram & Carl Grundy-Warr, eds., Borderscapes: Hidden Geographies and Politics at the Territory’s Edge (Minneapolis: University of Minnesota Press, 2007) 3; and Ronen Shamir, "Without Borders? Notes on Globalization as a Mobility Regime" (2005) 23 Sociological Theory 197. 33 Scholars from a range of disciplines have pointed out that there is nothing new or recent about the state’s preoccupation with the regulation of movement into its territories through border control and management. See e.g. Shamir, ibid. at 209; Richard Devetak, “In Fear of Refugees: the Politics of Border Protection in Australia” (2004) 8 Int’l J.H.R 101 at 103; and Mike Grewcock, “Irregular Migration, Identity and the State - the Challenge for Criminology” (2003) 15 Current Issues in Criminal Justice 114 at 121. Grewcock traces the linking of European security with external border control, immigration and asylum seekers back to the early nineties through to the present. See generally Mathias Albert, David Jacobson & Yosef Lapid, eds., Identities, Borders, Orders: Rethinking International Relations Theory (Minneapolis: University of Minnesota Press, 2001).
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states.34 This sentiment has in many ways defined the last decade of immigration politics and continues to be declared as a cornerstone of migration policy both in
Australia and internationally.
In charting contemporary constructions of the border and the nation state, I am simultaneously cognizant of Foucault’s caution, in his discussion of the role of political theory, that we are in fact, “more recent than we thought” and that “so many things can be changed, being as fragile as they are, tied more to contingencies than necessities.”35 My own argument here is not that the protection of borders is new to narrations of the national. Rather, the extent to which the issue of migration is so routinely twinned with the security of the state is a recent discursive development in contemporary border regulation. The correlation between the regulation of the border and national security no longer needs to be explained or justified as it has come to exist as a form of discursive common sense. Migration no longer only affects issues of national security; migration is a national security issue.
A consequence of the current security framework is that the border has come to exist squarely at the centre of “the political” as an imagined object around which
34 John Howard, former Prime Minister of Australia, famously captured the essence of this principle during the 2001 federal election campaign when, in response to the arrival of onshore asylum seekers, he declared: “[w]e decide who comes into the country and the circumstances in which they come:” John Howard “Transcript of the Prime Minister: Speech delivered at the Federal Liberal Party Campaign Launch” (Sydney, 2001), online:
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interiorities and identities are created.36 Golders, Rider, and Wall articulate some of the foremost functions of the border in current political discourse, noting that “the unity of the nation-state is achieved in and through the invocation of a border … the border functions in this register as the very object of imagination around which
(national) identity is created and recreated.”37 Contemporary discourses of national security and border protection are directed not simply at the exclusion of the unwanted other, but “also towards the production and regulation of political subjectivity within the polity;” the border allows us to project a limit to the community and to create an
“us.”38
As such, the border is imagined as naturally tracing and defining the edges of the nation. It simultaneously protects and delimits national identity. This imagined border not only acts as a barrier between the unruly outside and the organized inside – it simultaneously renders that which lies within the nation as ordered and that which lies beyond the limits of the nation as perilous, through narratives of protection and fortification. Newman neatly describes this particular function of the border, writing that “[t]he stronger the barrier function of the border, the more powerful … and the more abstract the narrative of what is perceived as lying on the other side.”39
Thus, the key supposition in these narratives of the national is that all danger facing the nation state and its members lies outside the state’s territorial boundaries. The need
36 Golder, Ridler & Wall, supra note 32 at 106. 37 Ibid. 38 Ibid. 39 David Newman, “On Borders and Power: A Theoretical Framework” (2003) 18 Journal of Borderland Studies 13 at 20.
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to protect the border as the ultimate signifier of sovereignty relies on a myriad of tropes of the “foreign Other” which “all trade on the exteriorization of threat and the foreigner as the embodiment of its infiltration.”40 Macklin rightly observes that this externalization of threat persists even though its logic is regularly contradicted by the fact that those accused of terrorist acts can and do come from within the territory of a country, as either citizens or residents.41 Dauvergne similarly points out that the high profile terrorist attacks have generally not been committed by people who have evaded state scrutiny or who were in breach of any migration law provisions. She highlights the fact that the London bombers, responsible for the terrorist attacks in London in
2005, were citizens and that “most of the September 11th terrorists held visas for the
United States, a far better strategy than risking the heightened surveillance which accompanies asylum seeker status.”42
Much evidence of the nature of “terrorist” activity reveals all too clearly that territorial lines can no longer be logically deployed to delineate who is “with us” and who is
“against us” or to found simple explanations or clear distinctions between “us” and
“them.”43 Indeed, despite the often-glaring evidence that the constructed threat facing the state cannot be neatly explained by or attributed to the presence of the non-citizen or non-resident within the state’s territory, the border is still invoked time and time again as the principal site from which the security of the nation ought to be enforced.
Security, in this instance, is achieved by excluding a territorially external “other” from
40 Macklin, supra note 32 at 392. 41 Ibid. 42 Dauvergne, supra note 22 at 543. 43 Bigo, supra note 32 at 10.
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a territorially internal “us.” The securitization of migration has resulted in “processes wherein people crossing borders find themselves subjected to heightened surveillance and enforcement in the name of national security.”44 As a result of these enforcement practices, “security crises” often transpire along the geographical margins of sovereign territory, “on islands, in airports, at sea and in offshore detention centres where authorities and migrants encounter each other.”45
Tuitt complicates the reliance upon territoriality to rhetorically define the nation. She observes the way in which, against standard narratives of the nation state, the state also constantly defines and iterates itself from within its boundaries by excluding and othering those who are rightfully within its territorial limits. Narratives and practices of exclusion and othering occur in relation to people who are citizens or permanent residents of the state and even if in name only, members of the nation state. Tuitt challenges the image of the refugee as the only or superlative “outsider” or “other” in relation to nation states. She seeks to establish that experiences of rightlessness and outsider status are not necessarily attached to territory but rather as something more equivalent to a lack of autonomy. This non-autonomous subjecthood is evidenced by the presence of some kind of external mark on an individual or group – which may or may not be dependent on a physical externality. Instead, she argues that the enduring characteristic of this state is that certain people cannot escape almost constant surveillance or control.46
44 Mountz, supra note 20 at xvii. 45 Ibid. 46 Patricia Tuitt, “Refugees, Nations, Laws and the Territorialization of Violence” in Peter Fitzpatrick and Patricia Tuitt, eds., Critical Beings: Law, Nation and the Global Subject (Aldershot: Ashgate,
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In contradistinction to the above critiques, measures implemented in the name of anti- terrorism and national security have routinely fixated on the outsider in the form of the migrant as the embodiment of danger. This fixation has been crucial in causing the edges of national territories (imagined as the only entry-point of the non-citizen) and immigration issues to become increasingly prominent in political discourse. Shamir highlights the role played by the “war on terror” in pairing border regulation with anti- terrorism efforts and national security,47 noting that proponents of the war on terror argue that the efficacy of the immigration system plays a crucial role in the local fight against terrorism as it is the key means by which the outsider is controlled and monitored. Under the logic of securitization it is “a well-functioning immigration system that deters, detects, and promptly removes those who lack a legitimate purpose for entering or staying in the country.”48
Finally, one of the significant consequences of the discursive conflation of migration and security is that the efficacy of migration regulations and the functioning of the physical borders of the nation state have become the index of sovereignty itself.49 The claim that border control, migration and citizenship law have become the central domain of the sovereignty of the state is the core thesis of Dauvergne’s recent book
Making People Illegal, which examines the relationship between globalisation and
2004) 37. See also Timothy Mitchell, “The Limits of the State: Beyond Statist Approaches and their Critics” (1991) 85 American Political Scientist Review 77. Mitchell argues that we need to question the view that the traditional figures of resistance to the state are those who are territorially outside of the state, and that “political subjects and their modes of resistance are formed as much within the organizational terrain we call the state, rather than in some wholly exterior social space” (at 79). 47 Shamir, supra note 32 at 202. 48 Ibid. 49 Dauvergne, supra note 13.
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migration law. In it, Dauvergne argues that migration policy has emerged as “the last bastion of sovereignty”50 because of the way in which “citizenship law and migration work together in creating the border of the nation.”51 Dauvergne argues that this focus on migration policy stems from the fact that the capacity of national governments to control law and policy has been eroded by global forces in so many areas, and that consequently, “control efforts have been concentrated on those areas that remain, ostensibly, within the direct control of national lawmakers.”52
Indeed, when the original Excision Act was first introduced into the upper house of
Federal Parliament in 2001, Government Senator Ian Campbell opened his second reading speech by stating that:
[t]he Australian public has a clear expectation that Australian sovereignty, including the manner of entry of people into Australia, will be protected by this parliament and the government. The Australian public expects its government to exert control over our borders.53
Even though the actual number of undocumented migrants arriving by boat to
Australia is still pitifully small in comparison to other countries, both the opposition party and the Australian press repeatedly accuse the government of “completely losing control” of the nation as a result of these boat arrivals.54 A shrill register of panic and
50 Ibid. at 169. 51 Ibid. at 119. 52 Ibid. at 169. 53 Austl., Commonwealth, Senate, Parliamentary Debates (20 September 2001) at 27495 (Ian Campbell, Migration Amendment (Excision From Migration Zone) Bill 2001). 54 “Labor losing control of borders, Abbott says” ABC Online (29 March 2010), online:
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alarm frequently accompanies reporting on how many “boatloads” of asylum seekers have arrived on Australian shores. The number of boats arriving is constructed as permanently increasing, irrespective of the actual numbers of arrivals as compared to previous years or periods.55 Regardless of the period of time between boat arrivals, the pro-forma newspaper headline almost invariably reads that “another boatload” of asylum seekers has arrived in Australia’s territorial waters.56
Accordingly, the control of the border has become the index of sovereign control writ large, rather than just one of the many functions to be performed by the sovereign.
Governments reassure constituents of their ability to act as capable sovereigns and control national affairs in general by pointing to how effectively they are able control the border, in particular. The loss of control over territorial boundaries is read as the loss of control altogether.57 Bigot explores the way in which members of government see themselves as insulted by their incapacity to enforce the integrity of the national
“body” that they represent at the border.58 As such, the migrant becomes a figure who is “both a public enemy breaking the law and a private enemy mocking the will of the politician.”59
55 For an account of the different patterns of boat arrivals in Australia and also figures indicating the origin and nationalities of those who arrive by sea to Australian territory, see Janet Phillips & Harriet Spinks, “Boat arrivals in Australia since 1976: Background Note” (Parliament of Australia: Parliamentary Library, 2010) online:
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The politicians who fixate on controlling borders are not only concerned about inefficiency or mismanagement of the border as a space (in the same way a system of public transport might be in complete disarray and require reform, or an inner-city space might have high crime levels and require a policy response). They fear the perceived or actual failure of border control because the management of migration at the border has become the index of governmental authority and sovereignty, and the central site from which the nation is secured and narrated.
Part Two - Borders Real and Imagined
The common sense understanding of “control” as the result of the securitization of migration is one that constructs the border as a perimeter that chiefly locks out, shuts down, and blocks entry. When framing the border solely in regards to migration policy
– which is precisely what securitization discourses tend to do – the border is imagined as a tightly controlled and uniform barrier, which principally prevents rather than permits entry. The discursive roles ascribed to the border under securitization discourses have gained something close to a monopoly on how the physical space of the border is imagined and narrated. I then show that both the geography of the border as well as the range of activities that take place at the border contradict the easy slippage between the border and the border solely as a barrier guarding against the outside. Thus, in this part, as well as outlining the discursive constructions of the border within security discourse, I look at some of the critiques of these constructions and highlight the features of the physical border that are obscured by the security framework.
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An instinctive response to hearing of national governments’ commitment to “effective border control,” is certainly to assume that more rather than fewer measures are being put in place to regulate the border. When imagining the “control” that constitutes
“border control,” we do not first think of the overseeing of temporary labour flows, of affluent tourists trailing their luggage across internal European Union borders, or of the liberalization of borders for the purposes of trade. Instead the border is associated with words such as prevent, stop, close, shut, and protect. Crucially, border control as a realm of policy is principally equated with keeping those without documentation and classified as “illegal’s” out, rather than letting in “legal” or “authorized” subjects.
Indeed, there exists a spectrum of ways to describe “how” the regulation of borders takes place – strictly, casually, anxiously, loosely, vigilantly, haphazardly, violently.
Shamir points out that ideas such as “flows,” “networks,” “trans-nationalism” and
“cross-border movement” are typically used by social scientists when they define and characterize the effects of globalization on the borders of the nation state. 60 He critiques this practice and argues that themes of closure and containment belong just as much to the narratives and realities of globalisation and the nation state as do visions of liberalized or open borders. Precisely which of these descriptors is appropriate depends on questions of which border (and which part of that border) is being discussed, from whose perspective, and the nature of the activity that is being regulated.
60 Shamir, supra note 32 at 198.
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Despite the myriad ways in which the border functions and is regulated by governments, in the context of the securitization of borders and migration, anti- terrorism regulations in particular have attempted to reduce the function of borders to a single purpose, that being one of exclusion. Anti-terror immigration measures reveal how “the functionality of borders is simultaneously overdetermined and crucially destabilized by the quest for security.”61 Macklin maintains that the only question asked about immigration policy and the role of borders in the contemporary moment is:
…whether and how effectively it enhances the security of citizens. Yet this singular insistence on what borders must do, namely protect Us from Them, cannot but expose the limits on what borders can and actually do.62
Observing the extent to which the construction of the border takes place at a discursive level is not to deny that there are many instances where the state does proficiently control the space of the border and acutely regulates the lives of people who attempt to cross the border with or without authorization. Brennan captures the need not to get too carried away with the metaphor of the border when he objects that in recent decades cultural theory has failed to examine the “practical” effects of nationalist ideologies in favour of a fixation on the metaphors of nationalism,63 writing that:
[Cultural theorists] are fascinated by the narrative layerings and polysemic ambiguities of political myth and representation, [such that] cultural theory radically underestimates the practical issues of management at stake in making of nations. Here the sober concerns of international relations are a salutary corrective.64
61 Macklin, note 32 at 384 (emphasis in the original). 62 Ibid. 63 Timothy Brennan, “Cosmopolitanism and Internationalism” in Daniele Archibugi, ed., Debating Cosmopolitics (Cambridge: Harvard University Press, 2003) 40 at 46-47. 64 Ibid.
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I disagree with Brennan’s suggestion that cultural theory’s identification of narrative threads, ambiguities and contradictions within nationalist mythmaking is incompatible with addressing the “practical realities” of international relations. The enforcement of a legal rule or the managing of a nation involves a process of imagining and constructing certain subjects, in such a way that directly affects how a particular space or group of people will be regulated.65 Thus, paying attention to the narratives underpinning law and politics is by no means necessarily distinct from work that focuses on the “realities” of international relations. Nonetheless, the reminder that discourse and narrative should not be examined as divorced from the state’s real and concerted management of certain lives and bodies is both instructive and valuable.66
Just as migration control has become the stage upon which the performance of sovereignty and security is enacted, the border has become the key site for the performance of migration control. It is taken for granted that migration occurs primarily at the border, such that other locations and purposes of migration and its regulation have receded into the background. Similarly, the fact that the practical and discursive business of securing the nation state occurs at locations other than the border is regularly overshadowed by the idea that effectively shutting down entry at the state’s physical rim is the key to national security. The notion that the border is
65 James Boyd White, “Imagining the Law” in Austin Sarat and Thomas R. Kearns, eds., The Rhetoric of Law (Ann Arbor: The University of Michigan Press, 1994), 29 at 41. 66 Although there are many ways to make this point more tangibly, the Italian project “Fortress Europe” is particularly apposite here. In response to the lack of centralized statistics regarding the deaths and disappearances that take place at the borders of the European Union, the project uses available media and government reports to keep count of the number of deaths that occur at E.U. boundaries. The project takes the form of a regularly updated blog, which at last check maintained that 14,921 people have died along European borders since 1988. See “Fortress Europe: L'Osservatorio Sulle Vittime Dell’Emigrazione”, online:
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relevant to national issues other than security and safety (labour, tourism, international relations, for a start) is drowned out by the fixation upon the securitization of the border region.
The crux of my analysis here is that the physical geography of the border and the action that takes place at borders is, above all else, inaccurately imagined according to the function ascribed to it by “national security” rhetoric. In the opening line of her chapter comparing national responses to refugees and undocumented migrants with narratives of pollution and pollution prevention, Haddad writes that “[t]hings that cross the border undermine the border’s authority and have the capacity to ‘pollute’ the inside that the border is trying to protect.”67 This first line of Haddad’s piece is noteworthy, because Haddad claims that all things that cross the border undermine its authority, rather than just those things that cross it without the authority to do so. In the realm of the imagined border, this statement seems to resonate with the logic of border regulation, which ignores the role border policy plays in enabling movement into the state and actively resists the multiplicities of the border and its purposes.
The idea that the physical location of the nation state’s border is neither geographically fixed nor immediately identifiable is perhaps best evinced by the fact that the boundaries of a state’s political influence and control are no longer confined to nor coextensive with its territorial borders. A range of scholars have observed this trend. They have critiqued the securitization of migration and the ideas of a fixed
67 Emma Haddad, “Danger Happens at the Border” in Prem Kumar Rajaram & Carl Grundy-Warr, eds., Borderscapes: Hidden Geographies and Politics at the Territory’s Edge (Minneapolis: University of Minnesota Press, 2007) 119 at 119.
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territoriality upon which it depends, and have noted instead the border’s inherent and constant instability and its lack of a fixed location.68 Macklin notes the way in which states, when pursuing migration control in particular, no longer respect their own physical borders in doing so. She identifies the “decline of geo-political borders as the limit of state jurisdiction or the assertion of power over non-citizens.” In a similar vein, Nestle notes that nations are increasingly moving “the locus of their border enforcement efforts beyond their terrestrial borders and floating such borders into the sea or landing them on territories of foreign countries.”69
Australia’s excision policy is a unique example of border control policy, which while invoking the border as a natural, stable, and singular barrier against “outsiders,” simultaneously destabilises it by “relocating” the border for the purposes of visa applications made by undocumented persons. A range of interdiction policies adopted by other Western states under the banner of border control evince a similar practice of what effectively amounts to border-shifting. Such measures include, but are not confined to the imposition of visa requirements on migrants from refugee-producing countries; the posting of immigration officials at foreign airports; sanctions on air carriers that (knowingly or not) transport improperly documented persons; training private officials to inspect and detect improperly documented travellers; and the
68 Ibid. at 132. Haddad notes the progressive expansion of the realm of border control without an attendant extension of territorial borders. She writes that the result is “that the borders of the state extend farther than ever, far from the state’s territorial jurisdiction and its physical borders, and territory and sovereignty are decoupled.” 69 Lori A. Nessel, “Externalized Borders and the Invisible Refugee” (2009) 40 Colum. H.R.L. Rev. 625 at 629.
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interception or diversion of ships carrying irregular migrants within national waters or on high seas.70
The increasingly common practices of interdiction and interception at locations that are a great distance from territorial borders illustrate the disjuncture between securitization’s narrations of the border, which construct it as a geographically fixed place, as versus the “surprisingly flexible, real, physical space of the border.”71
Davidson argues that “the practices of interdiction reveal a process of varied expansion and contraction of state authority and autonomy” and that these border dynamics reveal the shifting of national frontiers in both literal and figurative senses.72
The logic of securitizing migration sees the primary function of the border as that of a coherently regulated barrier, which is able to perfectly control entry into the state. This narration of the border’s function determines how the space of the border is imagined.
It imagines the border as singular, geographically fixed and physically permanent and therefore capable of acting as something akin to a city wall: primarily impenetrable and opened up only in line with the will of the sovereign. Governments discuss protecting “the” border, whereby the border is singular and held in place by the definite article. The national border, according to the logic of the securitization of
70 Attila Ataner, “Refugee Interdiction and the Outer Limits of Sovereignty” (2004) 3 J.L. & Equality 7 at 12-13. For a comprehensive discussion of the kinds of interdiction and prevention measures currently adopted by a range of states, see also François Crépeau, Delphine Nakache & Idil Atak, “International Migration: Security Concerns and Human Rights Standards” (2007) 44 Transcultural Psychiatry 311; and François Crépeau & Janet Dench, "Interdiction at the Expense of Human Rights: A Long-Term Containment Strategy” (2003) 21 Refuge 2. 71 Robert A. Davidson, “Introduction: Spaces of Immigration "Prevention": Interdiction and the Nonplace” (2003) 33 Diacritics 3 at 5. 72 Ibid.
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migration, is in a geographically fixed location and can be completely controlled by way of government regulation.
In contrast to securitization’s constructions of the border, De Cereal identifies what he terms the “illusory inertia” of the border. In his account of the reification of borders, he argues that territorial borders inscribed onto maps are depicted as if they were stationary and “lifeless,” conveying an ahistorical and final inertia, as if “nothing is moving, changing or shifting.”73 Contrary to these cartographic inscriptions, he argues that the border is neither a lifeless nor ahistorical physical place. Souk conveys the inherent geographical instability of the border when he writes that borders acquire their meanings always contingently, through the activities and practice undertaken around and through them.74 Souk explains:
[Borders] are consequential only where border practices are at work, making a border out of a fence or digging a border out of ditch. Thus understood, borders are always ephemeral, never eternal.75
This quote captures the reality that borders are not self-executing and further, that they are not characterized by a singular or constant function. Rather, any space that is identified as the border or which functions as a border does so only as a consequence of transient human endeavour. The border does not exist independently of its constitutive narratives. These narratives attach to the activity that takes place at the
73 Michel de Certeau, The Practice of Everyday Life (Berkeley: University of California Press, 1988) at 121; see also the discussion of de Certeau’s analysis of the map in Nevzat Soguk, “Border’s Capture” in Prem Kumar Rajaram & Carl Grundy-Warr, eds., Borderscapes: Hidden Geographies and Politics at the Territory’s Edge (Minneapolis: University of Minnesota Press, 2007) 283 at 287. 74 Soguk, ibid. at 284. 75 Ibid.
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border and their content and meaning, like the border itself, shift both over time and in place.
Part Three - Necessary Threats: Undocumented Migrants at the Border
The redrawing of Australia’s maritime border “for migration purposes” under the policy of excision, which I explore in the following two chapters, provides a pointed example of the extent to which government action determines and defines where the border is and what its function is to be, exposing the border as neither fixed nor self- executing.76 As long as the border is characterized as a site that needs to be completely controlled, the arrival of undocumented migrants – unauthorized, unidentified, uninvited – will remain wholly incompatible with border control and security objectives. The presence of the undocumented person “at the border” has come to be understood as not just undesirable, but also as illegal and dangerous.77 Undocumented and uninvited migrants are the physical embodiment of the “outside” against which the securitization of migration wards and protects. Their arrival at the border represents a loss of control and implies the failure of both sovereignty and the nation state itself.78
While the arrival of undocumented persons poses a direct threat to the territorial order that states seek to engender, their arrival is simultaneously vital to the justification of border security policies, since border control is a direct response to the anxiety of the
“outside” crossing into the “inside.” Without the possibility that the outside might
76 Delphine Nakache, The "Othering" process: exploring the instrumentalisation of law in migration policy (D.C.L. Thesis, McGill University, 2009) [unpublished] at 7. 77 For a discussion on the transformation of the adjective “illegal” into a noun to describe and classify certain people see Dauvergne, supra note 13 at 9, 15-19. 78 Audrey Macklin, “Disappearing Refugees: Reflections on the Canada-U.S. Safe Third Country Agreement” (2005) 36 Colum. H.R.L. Rev. 365 at 365 at 390.
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encroach on the inside, there would be no need for fervent border protection practices.
The fortification of the border-as-barrier requires that the border is (or was at some point) vulnerable, permeable, and in need of control. Simultaneously, however, the space of border and entry into the state are also narrated as being able to be completely controlled by governments and border protection policies.
The necessity of the threat of the arrival of the undocumented migrant in order to legitimize border control practices recalls Fitzpatrick description of “critical beings,” as those people who are simultaneously alienated from and yet necessary to the law since they are “integral to and constituent of its processes.”79 Such critical beings are not included in legal orders, and yet they cannot be understood only in terms of exclusion since it is through these beings that “the identity of the bounded nation is affirmed.”80
The danger and unease that attaches to the arrival of the undocumented person and his or her necessary exclusion is not only a result of the fact that he or she is from beyond the boundaries of the state. It is equally because his or her identity is unknown and potentially unverifiable by the state, which is fundamentally preoccupied with determining, assigning, and ordering identities.81 Douzinas catalogues some of the
79 Patricia Tuitt & Peter Fitzpatrick, “Introduction” in Peter Fitzpatrick and Patricia Tuitt, ed., Critical Beings: Law, Nation and the Global Subject (Burlington: Ashgate, 2004) at xii. 80 Ibid. at xiii 81 Catherine Dauvergne, “Confronting Chaos: Migration Law Responds to Images of Disorder” (1999) 5 Res Publica 23, where she argues that migration law is fundamentally about classifying and ordering the identities of those who seek entry to the state. See also Anna Szorenyi, “The Face of Suffering in Afghanistan: Identity, Authenticity and Technology in the Search for the Representative Refugee” (2004) 21 Australian Feminist Law Journal 1 at 3. Szorenyi tracks the cultural processes by which certain refugees are “rendered into recognisable subjects,” allowing them to be identified and
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narratives that attach to the asylum seeker, as one specific category of undocumented person, which work in concert to give rise to the anxieties caused by his or her arrival:
[The refugee] crosses borders and territories, he has left home and he does not have a home, he may not even want a home, other than temporary refuge. But home and dwelling, the safety of community and tradition is what shelters self and community from the “unspeakable other” … The refugee defies the propriety and property of self, he denies home, hearth and national territory by having no shelter and anchor. He is roaming, nomadic, delirious and threatening.82
The danger of the undocumented persons seeking entry to the nation state lies not only in their presence at the state’s border, or the prospect of their arrival. It is equally as a result of their transitional state. A person without the required legal documents or the right to enter any state, in motion and displaced, is without a home or a verifiable identity.83 He or she directly defies notions of the natural coincidence between territoriality, nationality, home and belonging. Douglas provides an analysis of why transitional states evoke such fear and discomfort, recognizing that “danger lies in transitional states, simply because transition is neither one state nor the next, it is undefinable.”84 The person who must pass from one state to another is himself in danger and emanates danger to others.85
authenticated as subjects worthy of compassion, and distinct from disorderly and anonymous crowds of refugees. 82 Costas Douzinas, The End of Human Rights: Critical Legal Thought at the Turn of the Century (Portland: Hart Publishing, 2000) at 363. 83 Haddad, supra note 67 at 121. This recalls Hannah Arendt’s well-known analysis of the unenviable position held by the “stateless person” in the international world order. Arendt describes the stateless person has having “lost all other qualities and specific relationships – except that they [are] still human.” See Hannah Arendt, The Origins of Totalitarianism, 3d ed. (London: George Allen & Unwin Ltd, 1967). 84 Mary Douglas, Purity and Danger: An Analysis of the Concepts of Pollution and Taboo London: Routledge, 1966), cited in Haddad, ibid at 96. 85 Ibid.
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Bigot explores the way in which anxiety over undocumented migrants in general is connected to neoliberal discourses that frame life as existing within a “risk society”, characterized by a distinct unease, whereby freedom is always associated, at its limits, with danger and insecurity.86 The construction of undocumented migrants at the state’s perimeter as dangerous fits with Bigot’s description of the neoliberal unease and disquietude about the safety of “our” freedom. Moreover, strategies that characterize onshore asylum seekers in particular as hostile, disorderly and illegal ensure that they are not regarded as legitimate refugees. Rather, via a process of inverting roles, the danger attributed to asylum seekers positions them as the “wrong-doers” and the nation state as the “innocent victim,”87 which allows in turn for the legitimization of border control. In this narrative, the nation state is “[u]under siege from unregulated people movements and social deviants” and the stable, law-abiding community is under attack, in which case border control becomes a “straightforward measure of self-defence” that must be exercised by the state.88
This threat is depicted as particularly acute when articulated in relation to the arrival of undocumented migrants by boat.89 Whether from Sub-Saharan Africa, Haiti, or
South East Asia, boat arrivals are described by the media using words such as currents, avalanches, floods, and waves, “suggesting that immigration is irrational and uncontrollable, and certainly dangerous.”90 Significantly, the effect of these natural- disaster metaphors is that they are able conjure up a level of force that could feasibly
86 Bigo, supra note 10 at 65. Bigo writes that the unease he describes here is better encapsulated by the French inquietude or malaise, both of which have connotations not found in English. 87 Devetak, supra note 33 at 103. 88 Ibid. at 106. 89 Nessel supra note 69 at 696. 90 Ibid.
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devastate or endanger (at least parts) of the nation state and its lawful inhabitants in a manner that is not otherwise associated with the arrival of 30, 40, or even 4000 undocumented persons.
Taking into account the view of the border as constantly under threat and “illegal” arrivals as the embodiment of that threat, the logic behind the measures taken by the
Australian government in relation to its coastlines and the arrival of undocumented migrants becomes clear. The arrival of even one unauthorized boat at the border presents an obvious and visible threat to the myth that states can have complete command of their borders. The precise problem of unauthorized people arriving by boat to Australian shores, like all undocumented persons at the border, is that they are a constant and constantly dramatized reminder of the nation state’s “embarrassing leakiness” coming from “everywhere and nowhere.” They are outside of the proper political container of a state.91
Yet, the threat of the arrival of undocumented persons at the edges of the nation state is necessary, as their very presence distinguishes the outside from the inside. Their bodies delineate membership of the nation state from non-membership. Their perceived and egregious lack of identity gives greater credence to the myth that everyone within the territorial nation has a clear, cohesive, and verifiable identity.
Perhaps most significantly, the real and visible arrival of undocumented people at the edges of nation states reinforces the fact that the outside persistently threatens to penetrate the inside, and that borders must therefore be defended and secured.
91 Devetak, supra note 33 at 103.
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Conclusion In outlining how the discourse of the securitization of migration functions, I have sought to make clear the processes by which the discourse of securitization of migration constructs and imagines the nation, territorial borders and the figure of the undocumented migrant generally, and the onshore asylum seeker specifically.
Countless scholars have pointed out that territorial borders, in spite of the unstinting efforts made by many Western governments, cannot actually be controlled in all places or hermetically sealed off.92 This is a reality that security discourse constituting the border and border control constantly seeks to evade and eschew.
The discourse of securitization delimits the definition of the nation by reference to its territorial edges, and therefore imagines the border as the most sensible place from which to protect and narrate the state. It attempts to obscure the fundamental instability of territorial borders, and the complex geography of movement, arrivals and departures at the site of the border. Instead, borders are presented as sites of control and closure and their geography is defied and reconfigured by the insistence that nation states not only have the duty but also the capacity to control and regulate all people who arrive on their sovereign territory. Unauthorized arrivals who manage to enter the territory of Western states directly challenge this conception of controlled and regulated borders and as a consequence, they are characterized as threatening.
They become subjects of necessary exclusion in order to maintain and legitimize the imagined sovereign control of borders. And yet, the prospect of their arrival and their
92 See e.g. Dauvergne, supra note 13 at 76; Bigo, supra 10 at 69-70; and Saskia Sassen, Losing Control? Sovereignty in an Age of Globalization (New York: Columbia University, 1996) at 91-94.
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presence at the state’s border is crucial to justifying the narratives of the securitization of migration and making the discursive conflation of migration regulation and national security make sense.
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CHAPTER TWO Pinning Waves Upon the Sand: Locating and Narrating the Border within Australia’s Policy of Territorial Excision
Introduction The assumption that borders have a predetermined function and location, which is independent from the narratives that constitute them, lies at the heart of border protection and securitization of migration rhetoric. In the previous chapter I reviewed the key discursive claims that sustain and legitimize the securitization of migration.
Casting off from that review, I reconstruct and analyze the border as it was imagined by the members of parliament debating Australia’s policy of territorial excision, and particularly by those who sought to defend territorial excision as a sensible response to the arrival of undocumented migrants by boat.
I argue that narrations of the border within the policy of territorial excision are a clear instantiation of securitization’s assumptions about the functions, geography, and nature of the territorial border. The geography and functions of borders as they were expressed during the excision debates imagined the border as geographically fixed, coherent and cohering place, and the natural point from which to determine and defend the safety of the nation. I then ask how these narratives of the border compare with the geographies and functions of borders when they are narrated and imagined outside of the strictures of a securitization and border control framework. I argue that thinking about the geography and space of borders as physical spaces outside of securitization discourse reveals that the location and functions of territorial borders are not stable or natural, and that borders do not exist independently of the narratives that
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constitute them. Instead, the immense space of the Australian border is exposed as unstable, contingent, and uncontrollable.
In this chapter I offer the policy of excision as an exemplary demonstration of the claim that what is defined as the border and how it functions is neither stable nor natural. In fundamentally altering the meaning and significance of crossing a territorial border, the policy of excision not only reveals that the location and significance of borders are deeply contingent. It simultaneously concedes the fact that the existent physical space of the border does not easily lend itself to being neatly sealed or perfectly controlled, either in reality or at a narrative level. Since entry into Australia via its maritime borders, which are constituted by unwieldy lines around thousands of widely strewn islands, could not be completely prevented or controlled, the meaning of crossing certain borders in certain circumstances was redefined by the Australian government. The policy exposes the relentless contradictions between borders as the natural and stable edge of the nation and the range of functions and geographies of
“the border.” In so doing, it destabilizes the narrative of the border as the natural and inevitable place from which to regulate the safety of the nation, which lies at the heart of the securitization of the migration.
In order to make the above claims, this chapter is divided into three parts. In part one
I sketch the history of the policy of territorial excision in Australia, explaining the political context in which the policy arose as well as exploring the statutory framework of excision in greater detail. Then, in part two of the chapter, I turn to the federal parliamentary debates that occurred in relation to the implementation and
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expansion of excision and government-produced material concerning the policy. I argue that the discussion of the border within the parliamentary debates exemplified the role and functions of the border as they are imagined within securitization of migration discourse. Finally, I examine the effect of territorial excision on the physical geography of Australia’s borders, arguing that territorial excision exemplifies my claim that contrary to securitization narratives, the geography and functions of the border are neither stable nor natural. Instead, borders are products of their constitutive narratives. The space of the border is unstable and contingent and often directly at odds with how it is narrated and imagined.
Throughout this chapter I rely on an approach to the conception of physical spaces that posits that geographic concepts or places must be understood as “always and ever recursively related to social relations – rather than as spaces in the abstract.”93 The border is one such space that is produced by social relations.94 I examine the policy of excision as an instance of the way in which the law and legal narratives in particular work to constitute specific spaces. Through examining how the border is constituted, I want to show that physical spaces in general are “saturated with legal meanings.”95
They acquire their meaning, inter alia, through “the authoritative inscription of legal categories, or the projection of legal images and stories on to the material world of things.”96
93 Nicholas Blomley, “Law, Property, and the Geography of Violence: The Frontier, the Survey, and the Grid” (2003) 92 Annals of the Association of American Geographers 121 at 123. 94 Nicholas Blomley, David Delaney & Richard T. Ford, “Preface: Where is Law?” in Nicholas Blomley, David Delaney and Richard T. Ford, The Legal Geographies Reader: Law, Power, and Space (Oxford: Blackwell Publishers Ltd, 2001) at xii at xvii. 95 Ibid. at xviii 96 Ibid. at xvii (emphasis in the original).
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Part One - The Policies of Territorial Excision & Interdiction in Australia: an Overview Parliamentary bills and regulations proposing, in one form or another, the excision of territory from Australia’s migration zone were introduced, debated, and re-debated eight times in the Australian federal parliament between 2001 and 2006.97 The repeated introduction of the policy into the Australian parliament and its prominence within Australian immigration politics has afforded it a significant and ongoing role in how the border and border protection policies are discussed and understood in
Australia. In this section I set out the history and substantive content of territorial excision and the way in which Australian government presented this “border protection policy” as an urgent response to the arrival (and potential arrival) of boats believed to be carrying irregular migrants into Australia’s territorial waters.
My account of the political context surrounding the implementation of the policy of excision is a partial and selective one.98 My intention is not to craft a comprehensive
97 This figure excludes the regulations that excised Bernier, Dorre, Hartog and Faure Islands on the basis of the mistaken belief that a boat carrying irregular migrants was en route to land on one of these islands. The regulations were passed and then rescinded three days later when it was realized that the boat in question was an Indonesian fishing vessel: Migration Amendment Regulations 2002 (No. 8) 2002 No. 323 (Cth.) and Migration Amendment Regulations 2002 (No. 11) 2002 No. 354 (Cth.). 98 I will draw upon the parliamentary debates in both the lower and upper houses of Australian federal parliament as it occurred in relation to the following bills. Together they comprise every attempt (both successful and unsuccessful) to excise land in Australia from 2001 to 2006. Note, however, that much of the recorded debate took place in relation to the bills rather than the regulations that were introduced, hence the concentration on debates concerning the relevant pieces of non-delegated legislation in the analysis below: Migration Amendment (Excision from Migration Zone) Act 2001 (Cth.); Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth.); Migration Amendment Regulations 2002 (No. 4) 2002 No. 129 (Cth.) [disallowed by the Senate]; Migration Legislation Amendment (Further Border Protection Measures) Bill 2002 (Cth.); Migration Amendment Regulations 2002 (No. 8) 2002 No. 323 (Cth.), though note, these regulations were then rescinded by the Migration Amendment Regulations 2002 (No. 11) 2002 No. 354 (Cth.); Migration Legislation Amendment (Further Border Protection Measures) Bill 2002 [No.2](Cth.); Migration Amendment Regulations 2003 (No. 8) 2003 No. 283 (Cth.) [disallowed 24 November 2003]; Migration Amendment Regulations 2005 (No. 6) No.171 (Cth.); and Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 (Cth.).
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account of political events or border control policy in Australia over a particular period. Instead, I attempt to give a sense of the political and legislative landscape in which the policy of excision arose. I aim to convey a sense of the ascendancy of
“border control” and anxieties about unauthorized migration that came to dominate
Australian politics in this period, and the extent to which Australia’s maritime borders were the stage upon which such anxieties played out. Even the most cursory look at
Australia’s recent political history confirms the accuracy of Sassen’s observation, made over twenty years ago, that in developed nations questions of immigration policy exist as a focal point for conceptions of the state and political debate .99
Australia’s policy of territorial excision was first devised in late 2001 and fell squarely within a set of reforms that were characterized as a “tightening up” of Australia’s borders and a “crackdown” on unauthorized migrants.100 The policy was introduced as part of an “urgent” government response to what was characterized as “waves of boats” carrying smuggled migrants heading towards Australia’s territorial waters.
Amongst the perceived waves of undocumented migrants approaching Australia was the “Palapa 1,” a sinking Indonesian fishing boat that was rescued by the MV Tampa, a Norwegian freighter that was en route to Singapore.
99 Sassen, supra note 92 at 74. Sassen observes that while the policy processes for immigration have probably never simply been confined to the narrow governmental arena of ministerial and administrative interaction, public opinion and political debate have become a key space for not only the discussion of, but reform and determination of immigration policy. Indeed, in the contemporary political landscape it comes as no shock that entire parties position themselves politically entirely in terms of their stand on immigration, especially within European Union countries. 100 Migration Amendment (Excision from Migration Zone) Act 2001 (Cth.). See e.g. “Howard proposes change to Australia's migration zone” Australian Associated Press (9 September 2001); David Marr, “Outside The Law” Sydney Morning Herald (15 September 2001); and Andrew Clennell, “Politicians Join Forces To Squeeze Boat People” Sydney Morning Herald (19 September 2001). See further Michael Grewcock, Border Crimes: Australia's ‘War’ on Illicit Migrants (Annandale: Federation Press, 2010).
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On August 26, 2001 the MV Tampa acquiesced to a direct request of the Australian government and rescued the Palapa 1, which was in distress and carrying 433 asylum seekers heading for Australian waters. After the rescue the Tampa was no longer seaworthy; there were now 433 people on a cargo ship licensed to carry no more than
50 people, there was not sufficient food or water onboard to sustain the passengers, and several of those on board required urgent medical assistance. The MV Tampa’s captain, Arne Renan, believed that the safest course was to head for the Australian territory of Christmas Island. The Australian government, despite having been informed of all of the above, denied the Tampa permission to enter Australian waters and dock at Christmas Island.101
Due to his concerns about the health of those on board Renan flatly disregarded the
Australian authorities’ strict orders not to enter Australian territory and sailed directly into the territorial waters surrounding Christmas Island.102 Before the freighter was able to reach the island, under the instructions of the Australian government, 45
Australian defence force personnel boarded and took control of the ship, with the explicit aim of preventing its passengers from reaching Australian territory where they
101 For a more detailed, if dispassionate account of these events see the judgment of North J in the habeas corpus action launched to try and prevent the Australian authorities from forcibly removing the Tampa from Australian waters: Victorian Council for Civil Liberties Incorporated v. Minister for Immigration & Multicultural Affairs [2001] F.C.A. 1297; (2001) 110 F.C.R. 452 (11 September 2001). 102 The lawyers acting on behalf of the Tampa had communicated to the Australian government authorities that several rescuees were unconscious, one had a broken leg, and that two pregnant women were experiencing severe pain. The Tampa also sent direct and increasingly urgent calls to the Australian Government for immediate medical assistance, however the Government continued to refuse the vessel permission to enter Australian waters. Before Rinnan set sail for Australian territory, the Australian government had directed the Tampa to turn around and dock in Merak, Indonesia, which was some six or seven hours further away than Christmas Island: Austl., Commonwealth, Senate Select Committee, “A Certain Maritime Incident” (Canberra: Commonwealth of Australia, 23 October 2002) at 1.8, online:
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would be able to claim asylum.103 The troops disembarked the ship’s 433 new passengers onto the naval carrier ship and set sail out of Australian territorial waters.104 At that point, the Prime Minister publically declared that not one of the asylum seekers would be given permission to land “in Australia or any Australian territories.”105
The Tampa affair was a critical moment in the story about unauthorized migration conveyed by the Australian government at the time, which presented Australia’s maritime borders as under an extreme and constant threat.106 The question of where
“to put” 433 undocumented migrants who sought asylum in Australia was presented as a question of whether or not the Australia government was in control of its maritime borders and indeed of the nation itself.107 The arrival of a string of six
Indonesian smuggling boats in Australian waters, of which the Tampa was one, was characterized as a “loss of control” of all borders.108 Without any particularly
103 At one point, in response to Rinnan’s concerns, the Australian government offered to send an unmanned dinghy containing medical supplies to the ship, however Rinnan refused the offer. Australian media and commentators speculated that the government chose not to send a doctor out of fear that the doctor would then be able to convey the passengers’ asylum claim to a lawyer, creating standing for a legal action to be launched on their behalf: “A Certain Maritime Incident,” ibid. 104 The Australian government had managed to broker agreements whereby all asylum seekers from the Tampa would either be processed on New Zealand or Nauru, with Australia bearing the full costs incurred by Nauru as a result of the agreement. This marked the beginning of what became known as the Pacific Solution, see infra note 136. 105 David Marr and Marian Wilkinson, “Tampa Tantrums” Sydney Morning Herald (20 October 2001). 106 See David Tanner et al, “352 illegals first of a new wave” The Australian (3 November 1999); Brendan Nicholson, “3500 Set To Enter Illegally” The Age (17 June 2001); Kerry Taylor “1500 ready to sail from Indonesia” The Age (31 August 2001); and Megan Saunders, “5000 new illegals on the way” The Australian (31 August 2001). 107 For a fascinating and meticulously researched account of this event and the lengths the Australian government and defense forces went to in order to prevent the docking of the ship on Australian territory see David Marr and Marion Wilkinson, Dark Victory, supra note 102, chapter 3. 108 Robert Manne with David Cortlett, “Sending them Home: Refugees and the New Politics of Indifference” (2004) 13 Quarterly Essay 1 at 12-14.
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probative evidence to support the claim, it was taken for granted that more and more boats were set to arrive.109
On September 18, 2001, just over three weeks after the MV Tampa performed its at- sea rescue, and just one week after the attacks on the World Trade Centre in New
York City, the policy of territorial excision was first introduced into parliament under the Migration Amendment (Excision from Migration Zone) Act 2001 (Cath.).110 The speed with which the first round of excisions were passed and the alarmist register of the debates that surrounded them are better understood in light of the atmosphere of panic fomented by the MV Tampa idling in international waters, being boarded by the
Australian defence forces, and finally being forced out of Australian waters.111 The amendments made by the Original Excision Act entailed that any person without a valid visa (defined as an “unlawful non-citizen”112), who first reached Australian territory at “an excised offshore place” by sea would be classified as an “offshore entry person.”113 For the purposes of the Act a series of islands, namely Christmas,
Ashmore, Cartier, and Cocos (Keeling) Island, were defined as “excised offshore places”114 and they were described as having been removed from the newly created
109 Ibid. See also Phillips & Spinks, supra note 55. This government-produced document shows the irregular and unpredictable pattern in which unauthorized boats have entered Australian territorial waters over the last two decades. 110 Migration Amendment (Excision from Migration Zone) Act 2001 (Cth.) Hereinafter this Act will be referred to as the Original Excision Act or the original or first round of excisions. 111 For more comprehensive accounts of the Tampa affair and the law reform that came in its wake, see Penelope Mathew, ‘Australian Refugee Protection in the Wake of the Tampa Current Developments’ (2002) 96 A.J.I.L 661; and Mary Crock, “In the Wake of the Tampa: Conflicting Visions of International Refugee Law in the Management of Refugee Flows” (2003) 12 Pac. Rim. L. & Pol’y J. 49. 112 Migration Act 1958 (Cth.), s. 14. 113 Ibid., 5(1). 114 Ibid.
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Australian “migration zone.”115 The Act also allowed for the excision of additional areas by way of gazetting regulations.116
The key consequence of the Act was that “offshore entry persons”, having first reached Australia at an “excised offshore place”, were to be prevented from applying for a visa under Australia’s existing visa application process, ordinarily guaranteed to persons on Australian territory under the Migration Act 1958 (Cath.).117 “Offshore entry persons” were also to be barred from existing administrative and judicial appeal processes for the review of migration decisions. Thus, they were to be denied the right to seek independent review of migration status determinations, ordinarily guaranteed under the Migration Act.118 The bar on making a visa application under the ordinary provisions of the Migration Act could only be lifted at the discretion of the immigration minister, if he or she considered that doing so would be in the public interest.119 In essence, the Act amended the ordinary application of the Migration Act on the excised islands for those who arrive without authorization, by revoking their former right to apply for any Australian visa. Instead, their visa applications would be processed under a “Non-Statutory Refugee Status Assessment Process,” with one level of review and no recourse to Australian tribunals or courts.120
115 The migration zone was defined as “the area consisting of the States, the Territories, Australian resource installations and Australian sea installations” and also included Australia’s territorial waters: Migration Act 1958 (Cth.), s 5(1). 116 Significant further excisions of other outlying islands occurred via regulation in 2005, which will be discussed below. See Migration Amendment Regulations 2005 (No. 6) (Cth.). See also Coombs, supra note 6 for a timeline and overview of all excisions and attempted excisions. 117 Migration Act 1958 (Cth.), s. 36. 118 See Sue Harris Rimmer, supra note 4. 119 Migration Act 1958 (Cth.), s. 46A(2). 120 Ibid., s. 46A. For further details of the non-statutory application process, see Australian Human Rights Commission, supra note 7.
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The Act passed into law on September 26, 2001. Its passing marked the beginning of a seemingly never-ending series of attempts by the then conservative government to excise ever-larger tracts of Australian territory.121 The first attempt to further expand the excision zone was made in June of 2002, when the government attempted to pass a set of regulations under the Original Excision Act.122 The proposed regulations did not have sufficient support to pass through the senate. They sought to significantly extend the range of “excised offshore places” to include, inter alia, the Coral Sea Islands, which cover a sea-area of approximately 780,000 square kilometers to the East and
South of the Great Barrier Reef.123
The government then repeatedly attempted to pass largely unmodified versions of these further excisions in June of 2002 and March of 2003.124 On both occasions the bills failed to pass through the Senate due to the opposition party’s refusal to support them. After a further failed attempt to expand the excision zone by regulation in
121 See Coombs, supra note 6. For a map of the excised territories see infra, Appendix A: “Australia - Maritime Boundaries and Application of Excision Legislation.” For the original map, see Department of Immigration and Citizenship, “Fact Sheet 81 Australia's Excised Offshore Places: Excision Places Map,” online:
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2003,125 the government finally managed to pass the second round of excisions in
2005 after winning a Senate majority in the federal election.126
The idea of excision expanded to what must surely be its own outer limit when the government introduced the Migration Amendment (Designated Unauthorised
Arrivals) Bill 2006 (Cath.) into federal parliament in May of 2006. The bill proposed to excise the whole of Australia from the Australian migration zone. As a result of the excision, reaching any and all Australian territory by sea without authorization would have the same consequences as the earlier excisions.127 The bill, however, never passed into law. Despite having won a majority in both houses of parliament in the previous election, the government no longer had the numbers it required to pass the bill due to the refusal of a block of government members of parliament to support the bill.128 Unsurprisingly, given the rather radical measures it proposed, there was a great deal of clamour surrounding the bill.129 One dissenting government minister – who had supported the earlier excisions – theatrically declared, “[i]f I am to die politically because of my stance on this bill, it is better to die on my feet than to live on my knees.”130
125 Migration Amendment Regulations 2003 (No. 8) 2003 No. 283 (Cth.). 126 Migration Amendment Regulations 2005 (No. 6) (Cth.). 127 Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 (Cth.), item 10 [replacing previous s. 46A(1)]. Under this bill, those who reached any Australian territory by sea, as unlawful noncitizens, would be classified as “designated unauthorised arrivals” and be thereby barred from the visa application system in the same way that “offshore entry persons” were excluded under previous amendments. See Harris Rimmer, supra note 3. 128 “Howard backs down on migration law, as more boatpeople arrive” Australian Associated Press (14 August 2006). 129 See, for example, Austl., Commonwealth, House of Representatives, Parliamentary Debates (19 September 2001) at 30958, 31013, and 31014 (Migration Amendment (Excision From Migration Zone) Bill 2001). 130 Austl., Commonwealth, House of Representatives, Parliamentary Debates (9 August 2006) at 52 (Russell Broadbent, Migration Amendment (Designated Unauthorised Arrivals) Bill 2006).
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While the Howard government did not succeed in excising the entire Australian mainland from the migration system, the excisions created a neat arc across the top of the Australian mainland within which all territories were outside Australia’s visa application system for irregular migrants.131 Significantly, the policy of excision is not a vestige of a forgotten period in Australian migration policy. The Australian Labor
Party prominently maintained the policy when it won government in 2007 and repeatedly proclaimed it to be one of the cornerstones of border control and immigration policy in Australia.132 In mid-2008, the Labor Immigration Minister gave a much-touted speech announcing extensive “migration reform,” which would honour the government’s election promise to “return humanity and fairness to Australia’s refugee policies.”133 Notwithstanding these comments, in that speech the minister confirmed that the “architecture of excision of offshore islands and non-statutory processing of persons who arrive unauthorized at an excised place will remain.”134
The intended net effect of the policy of excision is such that any undocumented person who attempts to reach the borders of Australian territory by sea will either be turned back altogether by way of Australia’s naval interdiction regime, or redirected to an
131 See the map of excised places at infra, Appendix A: “Australia - Maritime Boundaries and Application of Excision Legislation.” 132 Chris Evans, “Refugee Policy Under The Rudd Government: the First Year Address to the Refugee Council of Australia” (Speech presented to the Parramatta Town Hall, 17 November 2008), online:
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excised offshore island, if they are not already en route to an excised place.135 The system of border control that this regime unrepentantly endeavours to create is that of a maritime buffer zone surrounding the Australian mainland.136 If an undocumented migrant is approaching the Northern half of the country by boat, his or her vessel must carefully skirt over 4000 of the excised offshore islands,137 in order to reach any territory where he or she has a legislatively-guaranteed right to seek asylum.
This brief overview of how the policy of excision works to reconfigure Australian territory vis-à-vis undocumented migrants and its introduction into Australian law provides a backdrop for my discussion of the narratives of the border in the remainder of this chapter, as well as for the narratives of onshore and offshore refugees in final chapter of this thesis.
Part Two - Searching for a Border: Insides and Outsides in the Policy of Territorial Excision
135 Senate Select Committee, “A Certain Maritime Incident,” supra note 102 at 1.39 to 1.58: “Disruption and Deterrence Activities.” See generally Ataner, supra note 70; and Jessica Howard, “To Deter and Deny: Australia and the Interdiction of Asylum Seekers” (2003) 21 Refuge 1. See also the Australian government website “Border Protection Command,” online:
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Constructions of the border within the excision debates were shaped and determined by the functions and nature of borders as they are constituted by the discourse of the securitization of migration. In this part I look at the narratives of the border as they were presented and represented within the parliamentary debates addressing the policy of excision, in order to distil the various narratives of the border that were relied upon in order to explain and justify the policy. The first narrative that I identify within the debates is that the border is under constant threat and is a site of potential danger to the nation, which ought to be vigilantly controlled. Second, that the border is in a geographically fixed and stable place and can be completely and uniformly controlled by the state. Finally, that the territorial border is not just one of the many sensible sites from which to ensure the safety of the nation state, but the most sensible and productive site from which to do so. Even where members of parliament staunchly disputed the idea that excision was the optimal method by which to “protect” the border, these narratives about the geography and role of borders remained vastly undisturbed throughout the debates.
The parliamentary debates centred on several broad questions. Members of parliament debated whether or not the removal of ever-larger sections from Australia’s migration zone would reduce the number of undocumented persons travelling or being smuggled to Australia by boat. They questioned whether or not the policy of excision would achieve greater levels of national security, both by deterring undocumented arrivals altogether, as well as by preventing undocumented persons from reaching the mainland. Those who supported and rejected the policy alike questioned whether its alleged border control and national security outcomes came at too high a price,
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because of the extent to which excision would breach the rights and safety of onshore asylum seekers. This debate, of security versus rights, in turn involved questions as to whether those who arrived by boat were genuine asylum seekers and if they were, whether they deserved to be given “priority” treatment as a result of their “illegal” entry.
In examining these debates, I draw on commentary and contributions made by members of parliament regardless of their political affiliation. I note from the outset that there were of course members of parliament who did not support the policy of excision and who challenged the idea that all undocumented persons should be deterred from reaching Australia’s maritime borders. Where relevant, I refer to and record these contrary views. Since, however, my focus is on territorial borders as they are imagined in justification of the policy, I concentrate on the contributions of those who argued in favour of the policy’s implementation and the material produced by the government explaining and justifying the policy.
The narrative of the border as a vulnerable site, in need of constant control and protection, was apparent in the first press release announcing the government’s intention to introduce excision in 2001. The press release was entitled “Australia’s
Border Integrity Strengthened by New Legislation.” It stated that the intention of the reforms was to “ensure the effective control and management of Australia’s borders” and the bills were described as reinforcing “the sovereign right of Australia to alone
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determine who could enter the country and in what manner.”138 The motifs of effective control, protection, and sovereignty were central refrains throughout the excision debates; the virtue of pursuing the policy objective of “protecting our borders”139 was
140 a source of agreement across almost all parties in parliament. As opposition party member Nick Bolkus put it, “We have always protected our borders, and I believe we must always do this.”141
It may at first seem trite or underwhelming to observe the prevalence of the rhetoric of protection and “effective control” of the border within the excision debates and migration and security discourse more generally. The seeming banality of this observation is partially a function of how readily the imperative of completely controlling and protecting the border is accepted as common sense. Those debating the policy of excision did not challenge the convention of describing border regulation as a project of protection and control. As one opposition member of parliament, who did not support excision would have it, all Australians should get involved in the task of protecting Australia’s borders, forming something of a home-front, in order to protect the nation from danger:
Far more effective … would be the training and engagement of a nationwide team of coastguard volunteers—a major civilian effort which is crucial to the
138 Phillip Ruddock, “Australia’s Border Integrity Strengthened by New Legislation,” Ministerial Media Release, 164/2001 (26 September 2001). 139 See e.g. Austl., Commonwealth, House of Representatives, Parliamentary Debates (11 May 2006) at 7 (Andrew Robb, Migration Amendment (Designated Unauthorised Arrivals) Bill 2006). 140 Even Andrew Bartlett, the member of a minority party who made it his personal business to introduce disallowance motions each time a new piece of excision legislation reached the Senate, agreed that the protection of borders was a “very sophisticated challenge” that required “very sophisticated answers.” He did not agree, however, that asylum seekers specifically posed a border security threat: Austl., Commonwealth, Senate, Parliamentary Debates (18 August 2005) at 45 (Andrew Bartlett, Migration Amendment Regulations 2005 [No. 6]). 141 Austl., Commonwealth, Senate, Parliamentary Debates (24 September 2001) at 27727. (Nick Bolkus, Migration Amendment (Excision From Migration Zone) Bill 2001).
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protection of our borders … Fishing vessel owners and other operators should be given incentives and opportunities to play a role in protecting our borders and their fellow Australians.142
The excision debates revealed that there is a set of orthodoxies attached to how border policies are articulated and promoted. The rationale of protecting the border and the possibility of achieving a secure border were repeatedly affirmed within the debates:
On this side of the House we remain absolutely serious about protecting our borders and we have put before the Australian people a viable and effective strategy to do exactly that.143
The above quote conveys that Australia’s territorial borders are most certainly at risk and in need of an “absolutely serious” policy response, but simultaneously constructs them as protectable by way of sovereign action and government policy. The image of the border as permanently vulnerable recurred throughout the debates and several phantom “media reports” were referred to, confirming the existence and magnitude of the risk:
The reality is that Australia’s borders are under great stress and pressure. According to media reports, there are 5,000 potentially unauthorised arrivals waiting to come to Australia from Indonesia.144
The rhetoric of border control and border security relies upon narratives of the border as facing imminent and severe danger, which can be effectively subdued by complete control of the border at all points. This narrative obscures a range of other ways in
142Austl., Commonwealth, House of Representatives, Parliamentary Debates (Wednesday, 14 May 2003) at 14340 (Michelle O’Byrne, Migration Legislation Amendment (Further Border Protection Measures) Bill 2002 [No. 2]). A strategy along these lines had already been put in place: beyond the official navy patrol there are 32 or 33 “movement monitoring officers” throughout the Torres Strait, who are “traditional inhabitants of those areas” and “in part funded by the department…to detect irregular movements” and to pass that information on to departmental officers: Senate Legal and Constitutional References Committee, supra note 122 at 22. 143 Austl., Commonwealth, House of Representatives, Parliamentary Debates (Wednesday, 14 May 2003) at 14340-14341 (Michelle O’Byrne, Migration Legislation Amendment (Further Border Protection Measures) Bill 2002 [No. 2]). 144 Austl., Commonwealth, House of Representatives, Parliamentary Debates (19 September 2001) at 30968 (De-Anne Kelly, Migration Amendment (Excision from Migration Zone) Bill 2001).
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which border polices could be more accurately characterized. Stassen reminds us that governments could aim to “govern” borders instead of controlling and protecting them, since this would be a more precise way of describing what governments actually do at the border.145 But, as Stassen also notes, this has certainly not been the policy framework of most Western countries in regards to border regulation.146
Despite the ways in which border policy was discussed in the excision debates, when one considers the vast amount of activity that takes place at any point-of-entry into a developed nation, one gets a sense of what “governing” or managing borders looks like. The border regulation that takes place at airports, for example, looks much more like “management” or “governance” of the border than the picture of complete control advanced by securitization discourses. Stassen demonstrates this point, with the following quick but effective sketch of the sheer magnitude of activity that occurs at the US-Mexican border over a one year period:
175,000 legal immigrants entered the US from Mexico, along with 3.8 million visitors for pleasure; 433,000 visitors for business; 118,000 temporary workers and dependents; 25,000 intra-company transferees and dependents; 21,000 students and dependents; 8,400 exchange visitors and dependants; and 6,200 traders and investors. On the other hand, one million Americans live in Mexico [and] 19 million travel there each year as visitors...147
Governing, rather than protecting or controlling borders would certainly be a significant discursive shift away from the common-sense that prevails in relation to national borders and the way in which borders were invoked within the excision debates. It is difficult to think of the words “migration” or “border” in a contemporary policy context without their being quickly attended by the word “control.” The same is
145 Saskia Sassen, “Migration Policy: From Control to Governance,” Open Democracy (12 July 2006), online:
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not true of policy areas such as education, health, or telecommunications.
Contemporary borders, however, are sites that are intimately linked with the exigencies of national security and the legitimacy of the sovereign, justifying these narratives of protection and control.
Some lone voices within the excision debates in Australia suggested a version of border regulation that simply involved efficiently processing those who cross borders, which comes closer to something like governance or effective management.148 It was, however, the outright deflection of all unidentified vessels and individuals approaching Australia via its territorial waters that dominated the version of border protection articulated in the debates. The explanatory memorandum accompanying the original excisions stated that:
The purpose of excising the places and installations from the migration zone in relation to unlawful non-citizens is to prevent such persons from making a valid visa application simply on the basis of entering Australia at such a place or installation.149 Along with insisting on the necessity of controlling the border, members of parliament also narrated the border as a fixed place that could be completely controlled, whereby
148 For example, in rejecting the further round of excisions in 2005 (though notably, not the original excisions), opposition senator Joe Ludwig claimed that Australians “ all want a managed and fair system” and went on to outline how a quick, fair and transparent processing regime would identify “genuine refugees”: Austl., Commonwealth, Senate, Parliamentary Debates (18 August 2005) at 3421 (Joe Ludwig, Migration Amendment Regulations 2005 (No. 6)). 149 Explanatory Memorandum, “Migration Amendment (Excision from Migration Zone) Bill 2001”, House of Representatives (2001) at 2. At various points the aim of the legislation was also described as making it more difficult for people smugglers to evade prosecution, forcing them to come closer to the mainland such that they would not be able to simply “dump their human cargo and escape without detection” at an outlying island: Austl., Commonwealth, House of Representatives, Parliamentary Debates (26 March 2003) at 13586 (Phillip Ruddock). This justification was confused at the best of times, assuming excision would alter the course of people smugglers and based on claims made by the government that “people smugglers watch very closely what this government does”: House of Representatives, Parliamentary Debates (14 May 2003) at 14352 (Phillip Ruddock). It became particularly implausible as an explanation after the government proposed the excision of the mainland as well as the outlying islands.
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control required that the government (and therefore the nation) have complete oversight over who crosses borders and for what purpose.150 Senator Randall’s characterization of Australia’s maritime borders exemplified this conception of faultless control of the border:
So Australia is a great destination for many people wanting to visit or migrate, but people do it in an orderly fashion, and that is one of the outstanding things that Australia can do. We can track the people who come here, we do know where they are and we do know when they are coming and going, which makes Australia unlike Britain and many other countries of Europe and the rest of the world, as we have seen just recently in the US. Unlawful arrivals crossing their borders have become a huge issue.151
This quote is interesting because it concedes that while some borders are too large and unwieldy to be controlled (since they are not bound by sea), Australia’s thousands of kilometres of coastline are in fact capable of being perfectly controlled. In a second reading speech in 2006, arguing in favour of the excision of the mainland, government member of parliament Andrew Robb stated that the original round of excisions had proven to be an “outstanding success.”152 He promptly added, however, that border protection needs to be continually maintained and that, “Australia must constantly review its policy” to ensure that it is “effective at all times.”153 These two declarations, that border protection policies are capable of “succeeding”, but that the act of protecting the border is a serious business that must be fastidiously enforced evidences a view of the border as a place both entirely controllable and permanently vulnerable.
150 See also Austl., Commonwealth, House of Representatives, Parliamentary Debates (9 August 2006) at 4077 (Peter Slipper, Migration Amendment (Designated Unauthorised Arrivals) Bill 2006): We need to establish a principle so that everyone throughout the world knows that the only people allowed to cross our borders will be people who cross the borders with our consent. 151 Austl., Commonwealth, House of Representatives, Parliamentary Debates (9 August 2006) at 28 (Don Randall, Migration Amendment (Designated Unauthorised Arrivals) Bill 2006) 152 Austl., Commonwealth, House of Representatives, Parliamentary Debates (11 May 2006) at 7 (Andrew Robb, Migration Amendment (Designated Unauthorised Arrivals) Bill 2006). 153 Ibid.
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One government minister described the proposal to excise the entire Australian mainland as closing “one loophole” in Australia’s border and border protection strategy.154 By implication, with the exception of this one loophole, the state of
Australia is ordinarily sealed off to outsiders by the government’s border protection efforts. Never mind that the loophole being referred to was the fact that the mainland remained part of Australia’s “migration zone” and therefore governed by statute and the Australian judicial system.
The advantage of excision and interdiction, as the government presented it, was that the policies prevented all those who do not belong to the nation from gaining access to the Australian mainland or the right to remain in Australia without the direct consent of the immigration minister. The purpose of the original excision bill was explained as preventing certain non-citizens from applying for a visa “unless the Minister determines that it is in public interest that such a person should be able to make a valid visa application.”155 Protection in this sense consists of the minister personally and carefully scrutinizing every application made by an undocumented person to enter the territory of the state. This image, of a minister of the government having a detailed and personal grasp on all who are allowed to remain within the state exemplifies the level of imagined control of the border relied upon by the securitization of migration.
154 Austl., Commonwealth, House of Representatives, Parliamentary Debates (9 August 2006) at 34 (Kay Elson, Migration Amendment (Designated Unauthorised Arrivals) Bill 2006). 155 Explanatory Memorandum, “Migration Amendment (Excision from Migration Zone) Bill 2001”, House of Representatives (2001) at 2.
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The final narration of the border that I identify is the construction of the border as not only a sensible and productive site from which to ensure the safety of the nation state, but also as the most sensible and crucial site from which to do so. As Australia’s current immigration minister stated so matter-of-factly in relation to maintaining the policy of excision, “[c]ontrol and management of our borders is integral to the nation’s security.”156 Indeed, when the bill to excise the mainland was first introduced into the lower house, government minister Kay Elson stated that:
The nature of ‘illegal entry’ means that many people arrive without any documentation and it is totally appropriate that we thoroughly ascertain the suitability of anyone entering this country. To do otherwise would pose a potential security risk to our nation in these uncertain times.157
The relationship between national security and control of the border was presented as self-evident. The idea that unauthorized arrivals necessarily constitute part of the threat to national security was conveyed as uncontroversial and obvious, as the contribution of Con Sciacca in regards to the first round of excisions demonstrated:
It is very important when we talk about these matters, when we talk about the integrity of our borders, when we talk about people who come here on an unauthorised basis, that we do so in a way that both governments, of whatever political persuasion, and oppositions do their best to think about the nation and the security of the nation.158
Within the debates, certain members of parliament implied that the excision regulations would only affect “the right” people, namely those who are threats to the nation and are seeking to circumvent the “legal” processes by which to apply for entry
156 Evans, supra note 134. 157 Austl., Commonwealth, House of Representatives, Parliamentary Debates (9 August 2006) at 34 (Kay Elson, Migration Amendment (Designated Unauthorised Arrivals) Bill 2006). 158 Austl., Commonwealth, House of Representatives, Parliamentary Debates (19 September 2001) at 30954-30955 (Con Sciacca, Migration Amendment (Excision from Migration Zone) Bill 2001).
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to the nation. It was assumed that border protection would not exclude those from whom the nation did not require protection and against whom the national “we” had no qualm. As one Government Minister explained when the proposal to excise the entire mainland was on the table:
Certain persons not intended to be caught by the offshore processing arrangements will be exempted from the definition of designated unauthorized arrivals … The bill also allows the minister to declare that specified persons or classes of persons are exempt. This will provide flexibility to avoid the arrangements being extended to those who are not intended to be covered by the changes.159
One cannot help but wonder how these “exemptions” will work in practice, on the high and territorial seas surrounding Australia. How will the coast guard know who falls into an exempted category? In further explaining how the legislation included certain in-built exemptions, the same minister stated that, “[s]ound border management requires such flexibility, recognizing the complex range of circumstances that can apply to a person’s arrival in Australia without a visa.”160 Thus, the narrative of border control encompasses the assumption that only the “right” people will be affected by border restrictions, and all those who do not need to be excluded or shut out by border controls will be left in peace and allowed to enter. Implicitly, we are presented with an image of borders themselves as governed by a coherent logic, such that border protection mechanisms are able to discern between insiders and outsiders.
Only the intended “designated” people will be the subjects of border control, whilst everyone else will be allowed to cross into territory and the border (or more
159 Austl., Commonwealth, House of Representatives, Parliamentary Debates (11 May 2006) at 8 (Andrew Robb, Migration Amendment (Designated Unauthorised Arrivals) Bill 2006). 160 Ibid.
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accurately, border control mechanisms) will judiciously determine who falls in which category.
In this sense, the border is not only a sensible site from which to begin the screening process, which determines who has the right to enter national territory. It is the beginning and the end of that process. Control at the border is the best method by which to determine who may enter the state and who is a threat to the state, not the administrative and legal institutions of the state. Accordingly, excision as a form of border regulation and the border itself are intrinsically sensible and capable of uniformity and logical control. This conception of border control calls to mind the way in which the building of walls at the border have been understood as continuous with
“the extrajuridical practices springing up everywhere” in regards to undocumented people.161 The policy of excision assumes that the border and border controls can and should do the work of the institutions of the state, by summarily determining who is a threat to the nation, who may enter and on what terms.162
To bring together, then, the narratives regarding the geography and functions of the territorial border as they were articulated within the excision debates. The central assumption about the border as it was invoked in these debates can best be stated as follows: the border is a geographically fixed but potentially permeable site which, if regulated and controlled with the correct government policies, can be transformed into
161 Wendy Brown, “Porous Sovereignty, Walled Democracy” (Katz Distinguished Lecture in the Humanities delivered at the Simpson Centre for the Humanities, University of Washington, 22 April 2008), online:
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a hermetic site of near perfect order and control. Further, that the security of the nation self-evidently depends on such border control being achieved.
Part Three - Facts on the Ground: The Geography and Functions of the Territorial Border outside of Securitization Discourses
In this section I set the narratives of the border identified in the first section against other ways of describing and narrating the border outside of securitization discourses.
I think through the effects of territorial excision on the physical spaces ordinarily inscribed as Australia’s territorial borders. I argue that, in contrast to dominant narratives of the border presented within the parliamentary debates, the policy of excision’s flagrant reconfiguring of Australia’s border reveals the absolute contingency and indeterminacy of the border’s geography. Despite securitization’s attempts to tell a story of perfect control over stable borders, excision reveals that the immense and multiple spaces of the border lends themselves poorly to being completely controlled, or to being confined to a singular location, description, or narrative. The policy of excision’s blatant redefinition of Australia’s territorial border reveals the indeterminacy of the geography of borders, as well as the absolute contingency of the border’s meaning and location on narratives constituting the border.
Locating Australia’s territorial borders, both real and imagined, as a result of the policy of excision raises the question of how the physical territory of the excised islands themselves is to be defined in relation to the sovereign state of Australia. Since the excised territories have been removed from the migration zone, have they become the border or the boundary of the Australian state? Is it possible that the territorial
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edges of the excised places form the national border for some and not for others? Or has the border shifted to the edges of non-excised territories, which in many instances has become the territorial edge of Australia’s mainland?
Border studies scholars across a range of disciplines have theorized the existence of
“borderlands.” Borderlands are distinguished from conventional understandings of the border by approaching the border as “a geographic and cultural zone or space … defined and redefined in different contexts.” Borders are not seen merely as legal or spatial lines delimiting the state163 but rather as heterogeneous spaces without stable geographies, locations or economies.164 Might the excised islands best be viewed as part of the borderlands,165 since they are spaces subject to redefinition and yet are still narrated as Australia’s outermost territories and part of the sovereign nation? Can territorial edges of the excised territories be defined as the border of the nation state for those with a regular migration status, but not for those who are irregular migrants and without status?
There are no quick or, I would argue, even instinctive answers to these questions. I argue that the excised islands’ resistance to classification as either the border or not the border reveals the inability to easily settle upon a set of coordinates that represent and locate a fixed territorial border. As argued in the previous section, the border of
163 Ruth Buchanan, “NAFTA, Regulatory Restructuring, and the Politics of Place” in Nicholas Blomley, David Delaney & Richard T. Ford, The Legal Geographies Reader: Law, Power, and Space (Oxford: Blackwell Publishers Ltd, 2001), 285 at 286. 164 Ibid. 165 For an introductory overview of “border studies” as a field of inquiry see Cassarino, supra note 23. For an argument in favor of more and more diverse scholarship examining the relationship between law, society and geography at the border, see Rosemary J. Coombe, “Anthropological Approaches to Law and Society in Conditions of Globalization” in Blomley, Delaney & Ford, ibid., 298 at 299-300.
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“border protection” was narrated and discussed in a remarkably consistent way in the parliamentary debates. However, substantially more confusion arose when any attempt was made to conclusively define or describe space of the excised territories and their relationship to Australia’s sovereign border. How the islands were to be understood in relation to Australia’s territorial borders and the precise effect of the legislation on
Australia’s sovereignty over the excised territories were subjects of debate, contention and confusion during the debates.166
The government’s decision to use the language of excision, removal, and rezoning in drafting and communicating the effects of the legislation is a central point of interest in examining the effects of the policy of excision on the narratives and geography of
Australia’s territorial borders. The government’s adoption of this terminology, like all language choice, ought to be recognized as an active and deliberate choice and analyzed as such. Indeed, part of the project of becoming aware of the stories told by the law is learning how to qualify a language at the same time as using it, recognizing
“its omissions, its distortions, its false claims and pretentions” and finding ways to acknowledge other modes of speaking that qualify or undercut the naturalness of linguistic choices.167
166 These issues played out not only in parliamentary debates but also in the press. When further excisions were proposed, it was not uncommon to read headlines referred to confusion over whether Australia was abandoning sovereign territory. See e.g. Megan Saunders, “Islanders fear what the tide may bring,” The Australian (5 July 2002); and Amanda Hodge, “Islands cast adrift by zone ruling,” The Australian (12 June 2002). 167 James Boyd White, “Thinking About Our Language” in Tom Morawetz, ed., Law and Language (Aldershot: Ashgate, 2000) 3 at 9.
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This choice of language in relation to excision is of particular consequence because there were feasibly other legislative paths and statutory language that could have been adopted to achieve the same substantive outcome in regards to the rights of undocumented boat arrivals as “territorial excision.” The primary effect of the excision legislation was the suspension of specific provisions of the Migration Act for a certain class of people.168 The amendments affected one part of one parliamentary act and only applied to a particular class of people, that is, those arriving at Australian territory as “unlawful non-citizens.”169 All of the other provisions of the Migration Act remain in full force on the “excised” islands. As the then Immigration Minister highlighted:
The provisions of the Migration Act continue to apply to these islands. The legislative changes made by this bill do not affect Australian sovereignty over these islands. The islands remain integral parts of Australia.170
The then immigration minister stated repeatedly throughout the debates that the excised islands remained sovereign Australian territory. In 2003, the Immigration
Minister insisted that:
[i]f other islands were to be excised, they would remain just as much part of Australia as they ever were, subject to the exercise of our sovereignty where we say that for the purposes of the Migration Act certain people will not be able to lodge valid applications if they are in those excised areas.171
Despite the above claims that the islands most certainly remain “a part of Australia,”
168 See Migration Act 1958 (Cth.), s. 46A. 169 Migration Act 1958 (Cth.), s. 5(1), in particular the definition of “excised offshore place.” 170 Austl., Commonwealth, House of Representatives, Parliamentary Debates (26 March 2003) at 13586 (Phillip Ruddock, Migration Legislation Amendment (Further Border Protection Measures) Bill 2002 [No. 2]). 171 Austl., Commonwealth, House of Representatives, Parliamentary Debates (14 May 2003) at 14350 (Phillip Ruddock, Migration Legislation Amendment (Further Border Protection Measures) Bill 2002 [No. 2]).
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the government persistently used the language of excision and removal to describe the effect of the legislation on the islands in question and on the location of Australia’s territorial borders.
The term “excision,” however, seems to be a boldfaced mischaracterization of the effects of the excision legislation. The primary definition of excision is given as “the action or process of cutting off or out (any part of the body).”172 Excision is defined in a figurative sense as, amongst other things, “the action of cutting off from existence; destruction; extirpation; the condition or state of being cut off.”173 Considering the continued application of vast tracts of the Migration Act on the islands in question
(that is, all but a few provisions of the Act’s 313 pages), the Act’s subtitle “Excision from Migration Zone,” where the migration zone is defined as Australia’s sovereign territory and territorial waters, is inaccurate at the very least. If the migration zone were to be defined as “Australian territory from which valid visa applications are permitted,” excision would still be an inaccurate description, as the excision from the migration zone would still only apply to unlawful non-citizens arriving at the islands, not to the islands themselves.
Significantly, entirely the same result could have been achieved if the particular provision of the Act allowing visa applications was described as being suspended within the confines of a designated area and in regards to a particular category of persons. Such an act might have been named the Migration Amendment (Suspension of Certain Provisions) Act. Such a title, however, does not conjure the same images of
172 The Oxford English Dictionary, 2d ed., s.v. “excision”. 173 Ibid.
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Australia’s border having been shifted so as to only encompass the mainland at the expense of its outlying islands, a motivation I explore further below. Interestingly, the
Oxford English Dictionary’s fourth definition of excision is: “the action of cutting out or erasing (a passage from a book, a clause from a bill, etc.); an instance of the same.”
This definition could in fact accurately describe the effect of the legislation insofar as one provision of the Migration Act was held to no longer apply. However, even then, the provision regarding visa applications was not removed from the Act, but only suspended in specific circumstances and for specific classes of persons.
All of the statements made by members of parliament to clarify that the excision legislation did not entail the relinquishing of any part of Australia’s sovereign territory were made in direct response to public concern, if not outright anxiety, that
Australian’s sovereign territory would be diminished as a consequence of the legislation. Such concerns were reported as coming especially from the Australian citizens living on the islands themselves.174 The confusion sparked by the legislation about the sovereignty status of the islands was voiced both inside and outside of parliament. The then immigration minister acknowledged this and sought to soothe such worries in 2002:
I know a lot of people do not understand what is involved. They hear about excision and say, ‘This part of Australia is being lost to us in some way.’ We know that is not the case. It has not happened in relation to Christmas Island, it has not happened in relation to Cocos Island…175
174 Such concerns were reported as coming especially from Australian citizens living on the islands themselves: see supra note 166. See also the clarification about the effects of excision on indigenous persons living in the Torres Strait made by the immigration minister: Austl., Commonwealth, House of Representatives, Parliamentary Debates (20 June 2002) at 4018 (Phillip Ruddock, Migration Legislation Amendment (Further Border Protection Measures) Bill 2002). 175 Austl., Commonwealth, House of Representatives, Parliamentary Debates (14 May 2003) at 14350 (Phillip Ruddock, Migration Legislation Amendment Further Border Protection Measures) Bill 2002 [No. 2]).
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In response to these “public concerns” members of government recounted to parliament that they had made “several trips” to the affected islands to “make it clear that the proposed changes will only affect those who arrive unlawfully.”176 In a statement that reveals the flagrant disjuncture between the effects of the legislation and the drafting language that was chosen by the government, a government-produced digest said of the proposed second round of excisions in 2002:
Contrary to popular perception, press releases, the second reading speech and even its title, the Excision Act did not excise these territories from the migration zone. It provided that an ‘offshore entry person’… may not make a valid visa application while they are in Australia and while they remain an ‘unlawful non citizen.’177
Indeed, despite naming the policy “excision from migration zone,” the government deemed it “plainly absurd”178 that anyone would think that the government had reduced “either Australian territory or Australia’s borders.”179 In making such a statement, the government is relying upon a process of formal statutory construction in relation to the excision bills. That is, the government claimed that a careful reading of the Act’s provisions reveals that they certainly do not result in the cutting away of any
176 Austl., Commonwealth, House of Representatives, Parliamentary Debates (14 May 2003) at 14352 (Phillip Ruddock, Migration Legislation Amendment (Further Border Protection Measures) Bill 2002 [No. 2]). As the Minister explained, “My colleague Senator Scullion went to the Northern Territory recently and visited a number of Indigenous communities to consult with them about the effect of the bill and to make it clear that the proposed changes will only affect people who arrive unlawfully.” 177 Nathan Hancock, “Migration Legislation Amendment (Further Border Protection Measures) Bill 2002: Bills Digest No. 176” Canberra: Department of the Parliamentary Library, 2002) [emphasis in the original]. See further Coombs, supra note 6. This was a parliamentary publication entitled “Excising Australia: Are We Really Shrinking?,” which explicitly sought to clarify that the legislation would not result in a loss of Australian territory. 178 Austl., Commonwealth, House of Representatives, Parliamentary Debates (20 June 2002) at 4017 (Phillip Ruddock, Migration Legislation Amendment (Further Border Protection Measures) Bill 2002); and Austl., Commonwealth, House of Representatives, Parliamentary Debates and (26 March 2003) at 13586 (Phillip Ruddock, Migration Legislation Amendment (Further Border Protection Measures) Bill 2002 [No. 2]). 179 Ibid.
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islands from Australia, nor do they end the operation of the Migration Act on those islands, nor affect the sovereignty of the Australian parliament in any way. Rather, a reading of the core provisions reveals that the effect of the Act is that when certain people arrive in certain spaces, they will not be included in the ambit of persons to whom one section of the Migration Act is intended to apply. As the explanatory memorandum explains, the Act “does not affect the application of any other provisions of the Migration Act” to offshore entry persons.180
When one reads the statute, it is hard to quarrel with the statutory construction process engaged in by the government and it attendant conclusions that no land has been physically “excised” from Australia, or heedlessly cast outside of the sovereign state.
However, this insistence on the fact that the Act did not bring about any removal of territory from Australia’s physical land mass stands in direct contrast to the way in which the legislation was framed by the government. The very naming of the first excision bill as the ‘Migration Amendment (Excision from the Migration Zone) Bill’ and of the islands within the bill as “excised offshore places” leads almost inexorably to the assumption that something, somewhere had been removed from Australian territory.181
180 Explanatory Memorandum, “Migration Amendment (Excision from Migration Zone) Bill 2001”, House of Representatives (2001) at 5. See also Migration Amendment (Excision from Migration Zone) Bill 2001, s. 46A. 181 The government’s original press release, which announced the policy, gave blatant air play to the idea of removal and excision of the islands in question: Phillip Ruddock, “Australia’s Border Integrity Strengthened by New Legislation,” Press Release 164/2001, 26 September 2001. See also, Department of Immigration and Citizenship, “Fact Sheet 81 – Australia’s Excised Offshore Places”, online:
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The use of the word ‘excision’ in particular to narrate the effect of the legislation is not only inaccurate, in that the islands have not been removed, it is also an especially dramatic and specialized term with which to describe the rhetorical subtraction of these territories from Australia’s migration zone. As noted above, the primary definition of excision is given as “the action or process of cutting off or out (any part of the body).182 The word is primarily understood as a medical term, and related to surgical procedures, disease, and illness. Indeed, the Oxford Concise Medical
Dictionary also lists excision amongst its pages. It defines to excise as “to cut out tissue, an organ, or a tumour from the body.”183 Under this definition, the nature of the removal to which excision refers is hardly equivocal or implicit. Moreover, within the limits of these definitions, an analogy can feasibly be drawn between the removal of the excised islands and that of a malignant tumour, which is unhealthy and undesired, and needs to be cut out in order to protect the health and functioning of the whole.
In light of the language chosen by the government, it is hardly surprising that the legislation was attended by a degree of confusion as to its effects that I have outlined above. Nor is it surprising that the government was compelled to assuage members of the populace that they were not in fact surrendering the very sovereign territory they were seeking to defend. The alarmist response that was provoked by the passing of the excision legislation highlights that the border is ordinarily imagined as a place that is permanent, certain, and locatable. Yet, the very debate and confusion arising from the legislation about where the border is, and what the excised territories were in relation
182 The Oxford English Dictionary, 2d ed., s.v. “excision” [emphasis added]. 183 The Oxford Concise Medical Dictionary, 8th ed., s.v. “excision”.
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to Australia’s borders demonstrates that the meaning and location of the border are just as much a product of narrative, sovereign action and government policy as is any other space which governments might seek to regulate.
Even accepting the government’s construction of the statute, which holds that its provisions do not result in any actual removal of territory, it is clear that a new “zone” has been created within Australian territory whereby the meaning of crossing the border (if not the border itself) had certainly been altered or shifted. Nothing demonstrates this as patently as the map produced by the federal government to illustrate the areas of excision after the second round of excisions were passed in
2005. The map was available in various reports regarding excision and is currently attached to the government-produced fact sheet on the issue. It depicts the entire country with a band of bright yellow delimited by a dark blue line arcing around approximately the top third of the country. The yellow section is described as the
“area in which prescribed excised offshore places are located,” and is unambiguously delineated from both the mainland and Australia’s territorial waters.
Even if the sovereign border has not been moved for all purposes, the legislation and the accompanying map highlights something that is often obscured by narratives of the border construed for the purposes of one piece of policy (national security, for example) or within one government department. Namely, that the effect of crossing the territorial border is different for different subjects, depending upon what regulatory function the border is meant to be performing. There is nothing consistent about how
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the border functions in different contexts or how its geography affects those who are crossing it.184
Not only did the policy of excision challenge the idea that the border, which lies at the heart of “border regulation,” is in one fixed place, but the debates also invoked a multiplicity of sovereign borders, located in different places, and created a hierarchy amongst them. Within this hierarchy, some borders were worthy of protection, others were less worthy and some required no protection at all. Most notably, the territorial edges of the nation were not necessarily the border that was being referred to under the banner of “border control.” The border around Australia’s mainland came to be understood as more profoundly the border than the “other” borders surrounding
Australia’s outlying islands.
In the excision debates the mainland and its territorial edge were constructed and narrated as more legitimately and definitively “Australia” than any of the island territories that also belong to Australia’s sovereign territory. This became most clear in debate surrounding the proposal to excise the entirety of Australia from itself. Here, those members of parliament who had been perfectly unperturbed by the original excision of territory in 2001, became “disgusted” and even “utterly disgusted”185 by
184 Davidson, supra note 71. See also infra, Appendix A for the map that clearly depicts the various excision zones that were enacted by all amending Acts, and visually highlights just one of the ways in which the legal effect of one’s presence on a particular piece of land is neither constant nor consistent for all persons. 185 Austl., Commonwealth, House of Representatives, Parliamentary Debates (9 August 2006) at 60 (Kate Ellis, Migration Amendment (Designated Unauthorised Arrivals) Bill 2006); and Austl., Commonwealth, House of Representatives, Parliamentary Debates (9 August 2006) at 40 (Ann Corcoran, Migration Amendment (Designated Unauthorised Arrivals) Bill 2006).
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the idea that we would “excise Australia from itself” or “surrender our borders.”186
The legislation was described as “profoundly disturbing”187 and the then opposition leader colorfully described the proposal to excise the mainland as “so totally dumb and wrong”188 in concluding his speech against it in the lower house of parliament.
The disgust, as it was expressed, was not so much a result of the legislation barring all undocumented migrants arriving by boat from the right to make an application for asylum. Instead it was articulated as a sense of outrage that Australia would
“abandon” its mainland borders. Tony Burke, captured the sense of incredulity that accompanied the 2006 proposal:
And finally we ended up with this, the most bizarre proposal of all: that border protection would be abolished and replaced with border abolition—that Australia would become a nation without a border.189
In making the above complaints, members of parliament made little or no reference to the fact that other statutory acts had surrendered the borders of 4891 territorial islands over the preceding four years. Equally, whilst opposition parties had argued that the second round of excisions and the proposal to excise the mainland represented “a capitulation, a surrender”190 of sovereign territory, the original excision of four islands
186 As one member of parliament responded: “You do not deal with boat arrivals by pretending that you do not have sea borders at all”: Austl., Commonwealth, House of Representatives, Parliamentary Debates (10 August 2006) at 32 (Anthony Albanese, Migration Amendment (Designated Unauthorised Arrivals) Bill 2006). 187 Austl., Commonwealth, House of Representatives, Parliamentary Debates (10 August 2006) at 7 (Bob McMullan, Migration Amendment (Designated Unauthorised Arrivals) Bill 2006). 188 Austl., Commonwealth, House of Representatives, Parliamentary Debates (10 August 2006) at 33 (Kim Beazley, Migration Amendment (Designated Unauthorised Arrivals) Bill 2006). 189 Austl., Commonwealth, House of Representatives, Parliamentary Debates (9 August 2006) at 23 (Tony Burke, Migration Amendment (Designated Unauthorised Arrivals) Bill 2006). 190 Austl., Commonwealth, Senate, Parliamentary Debates (9 December 2002) at 7476 (Nick Sherry, Migration Legislation Amendment (Further Border Protection Measures) Bill 2002)
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in 2001 was roundly accepted as a necessary component of Australia’s border control strategy.
In relation to the island of Australia, it is apparent from these debates that “our borders,” as they were so frequently referred to, were not in fact imagined and understood as all borders for all purposes. The borders of the excised islands were presented as inferior to those of the mainland. This was equally the case in relation to populated islands, such as the relatively well known Christmas and Cocos Islands, which are inhabited and established tourist destinations.191 During an inquiry into the second round of excisions, government ministers and departmental representatives not only admitted that did not they not know the number of islands that fell within the excision zone, but that they also did not know which, if any, of the islands were inhabited at all.192
In line with the attitudes of some members of parliament to the significance of the excised islands, the scale of the map produced by the government depicting the effects of the excision legislation is such that only a handful of the islands located in the excised area are visible at all.193 For the most part, the yellow “excised” area strikes one as an uninterrupted seascape, void of any land. A few of the larger excised islands
191 During public hearings about this further round of excisions, a representative from the Department of Immigration noted that “an island could be anything from a sandbar to what we might think of as an island”: Senate Legal and Constitutional References Committee, supra note 122 at 13. 192 Senate Legal and Constitutional References Committee, ibid. See also Austl., Commonwealth, Senate Estimates: Question Time, Hansard (6 August 2002). 193 See infra, Appendix A. Another map, which is not attached to the factsheet but is attached to one of the Senate Inquires into the further excisions, focuses on one area containing a number of excised islands. The map is entitled “Australia’s Maritime Zones in the Torres Strait” and on a vastly different scale, shows more than a hundred islands speckled in just one small area of excision: Senate Legal and Constitutional References Committee, supra note 122 at 11.
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that do not lie in the yellow area are visible; they are shaded in pink and described as an “area in which an excised offshore place is located.”194
Indeed, the excisions of these islands, and the offhand way in which they were referred to, conveys something about their imagined geography. One imagines the islands to be far-flung, sparsely inhabited, or even completely deserted territories. At the very least, one could safely assume that the ministers who confessed to having little sense of where these islands are and who inhabits these territories assume them to be insignificant and unrelated to the borders of border protection. As a result, the islands become impossibly remote and distant from the nation; those who land on them do not endanger the nation or pass through to the “inside” of the nation, since they are not on the mainland. However, as some members of parliament highlighted, far from being distant specks on the horizon, a number of the 4891 excised islands are visible from the mainland or can be reached by foot at low tide.195 As Labor Senator
Sandra Kirk explained, “Some of these thousands of islands are so close to the
Australian mainland that they can be seen by the naked eye. In some cases, you can even walk to them.”196 Further, figures provided by the Australian Bureau of
Statistics revealed that there was a total of 20,629 “usual residents” living on excised territories in 2001.197
194 See infra, Appendix A. 195 Senate Legal and Constitutional References Committee, supra note 122 at 13. 196 Austl., Commonwealth, Senate, Parliamentary Debates (18 August 2005) at 28 (Sandra Kirk, Migration Amendment Regulations 2005 [No.6]). 197 Senate Legal and Constitutional References Committee, supra note 122 at 13.
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The rhetorical casting out of these territories represents both the impulse towards, and the impossibility of, locating the limits and consequences of sovereignty simply by tracing one geographically fixed and neat territorial border. The comparatively neat edge of Australia’s mainland is not Australia’s sole sovereign border. Instead, there is an uncertain and indeterminate line tracing the territorial waters around thousands of unwieldy islands. The impossibility of actually achieving a timeless border or complete control of the space inscribed as the border is demonstrated by the government’s decision to reconfigure Australia’s formal sovereign borders so as to create an easily imaginable borderline. As such, it is no surprise that the government adopted the language of excision and borders and zones and that these islands were so readily sacrificed in pursuit of border security policies.198
Excision admits the possibility that the territorial edges of the nation state are not necessarily the point from which the nation will be defended or defined, and in doing so admits that the national border, as it is referred to in security discourse, is neither stable or natural. As the memoranda attached to the legislation highlighted, stepping onto sovereign territory can no longer be necessarily equated with a person having entered the nation state. Simply crossing the border in certain places, in this instance, does not necessarily mean one has crossed into the full purview of the nation state and its legal system:
The purpose of excising the places and installations from the migration zone to unlawful noncitizens is to prevent such persons from making a valid visa
198 It is worth considering the way in which excision functions here as a metaphor, since the actual cutting out or physical removal of the islands was never seriously a possibility, even if the islands really were removed from the nation of Australia. On the role of metaphor in discussions of migration, and their role in hiding or masking normative processes, see Nakache, supra note 76 at 14-18.
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application simply on the basis of entering Australia at such a place or installation.199
The goal of border protection is to achieve a secure and impregnable border.
Simultaneously, there is remarkably little about the actual geography of over 4000 outlying islands and their borders that suggests clear lines and defendable borders.
This brings me to my final argument about the policy of excision and the extent to which it destabilizes standard narratives of the border. The act of excising territory concedes rather than denies the terminal vulnerability and porosity of the border. It admits that the border and the spaces of the border cannot be controlled to the point where they function as moats, gates, or fortified walls, letting only the right people in and keeping out enemies and aliens. This was acknowledged by one government minister, who referred to the inadequacy of simple navy patrol and surveillance strategies in protecting the border, in order to argue in favour of the excision of land and the redefining of Australia’s borders:
The reality of Labour’s coastguard proposal would be the spending of many hundreds of thousands of dollars… basically to buy more boats. With 3,000 or 4,000 islands you will never buy enough boats to monitor every island. It simply will not work.200
In redrawing the border of the migration zone and redefining the meaning of crossing the border, the Australian government essentially gave up the pretence that it could keep all irregular migrants on the other side of Australian borders. This inability to prevent the physical crossing of the border at all places, to seal off the border, or to
199 Explanatory Memorandum, “Migration Amendment (Excision from Migration Zone) Bill 2001, House of Representatives (2001) at 2 (emphasis added). 200 Austl., Commonwealth, Senate, Parliamentary Debates (24 November 2003) at 17556 (Amanda Vanstone, Migration Amendment Regulations 2003 (No. 8)).
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even monitor it at all times and at all places, reveals why the state was compelled to redefine the meaning of crossing the border altogether. As the opposition argued in relation to the second round of excisions, “the government is effectively saying that the job of defending our borders is so difficult that we will cop out of it and surrender off bits and pieces of Australia.”201
The inability to completely control territorial borders in all places is applicable even to land-based borders, which unlike Australia’s maritime borders, are not comprised of thousands of islands and unnamed sandbars. The sheer breadth of activity that takes place at the border cuts crudely against standard narratives of the ordered and orderly border; Stassen notes the inability to perfectly control the spaces of the border when she plaintively observes that nowhere in the world has unauthorized migration been successfully stopped via border controls.202
Conclusion Social spaces are not given. They are actively produced and law and legal texts have a part to play in how social and physical spaces are represented and understood.203 That which is imagined can feasibly happen within any space is constrained by our imaginings of the space itself, and the ways in which that space is narrated and
201 Austl., Commonwealth, Senate, Parliamentary Debates (9 December 2002) at 7478 (Nick Sherry, Migration Legislation Amendment (Further Border Protection Measures) Bill 2002). Senator Sherry went on, “[e]ffective defence is defending all of Australia’s borders – the Australian nation – not cutting bits and pieces out of it:” ibid. Tangentially, the then opposition party (now in government) adopted this alleged “cop out” as a cornerstone of their own immigration policy when they come to power. See Evans, supra note 132; and supra note 134. 202 Sassen, supra note 145. Brown uses the US/Mexico border and the inconsistency of its fortifications as an example of the ineffectiveness of border controls and impossibility of complete control. She notes that at “the Tijuana Santiago border the US/Mexico wall consists of three layers of fifteen foot high steel walls, adorned with sensors and video surveillance technology and monitored by hundreds of border patrol jeeps and helicopters. Thirty miles east there are huge gaps in a single layer fence.” Brown, supra note 161. 203 Blomley, Delaney & Ford, supra note 94 at xvi.
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described.204 It follows then, that the excision legislation and debates that it sparked had a significant effect on how Australia’s borders are imagined to look, how they function, and what is imagined to happen under the banner of border control.
Territorial borders are simply too vast and too immense to plausibly accommodate narratives that tell a story of the nation state overseeing all activity that takes place “at the border.” Once the multiple regulatory functions and meanings of borders are acknowledged, the narrative effort that is required to characterize them as an unchanging physical places, capable of being perfectly regulated, becomes painfully apparent.
In this chapter I have outlined how the border is imagined under the discourse of the securitization of migration, and attempted to imagine the space of the border and the effect of excision on the border outside of the strictures of securitizing discourses. In the debates surrounding the policy of excision, the border was constructed as a natural and stable site, from which to defend both the nation and its sovereignty. These characterizations of the border, in line with the securitization of migration, work to deny the contingent nature of physical spaces and territorial borders. The policy of excision and its effect upon the physical space of the border reveals the contingency and instability of the space of the territorial border. The government’s narration of over 4000 Australian islands as being “excised” from Australia’s migration zone for certain subjects is a far cry from the narrations of the border as stable, locatable, and controllable, which dominated the parliamentary debates regarding the legislation.
204 Ibid.
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The government’s constructions of the border denied the multiple functions performed by the border and worked to confine the ways in which the space of the border is described and imagined. Similarly, the narratives that were applied to undocumented persons within the excisions debates were based on a series of assumptions about their lives and how and why they would travel to Australia without authorization. These assumptions were presented not only as making sense but as making more sense and being more plausible than other stories about the lives of those who arrive at the borders of the nation state. The chapter to follow explores the ways in which
“unlawful” undocumented persons were narrated in opposition to narrations of genuine refugees within the excision debates and articulates the assumptions upon which each set of narratives relies.
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CHAPTER THREE The Lives of Others: Good Refugees and Bad Asylum Seekers
Introduction Securitization of migration tells a story about the nation as an inside to an outside, where the role of the state is to maintain the self-evident yet vulnerable line between the two. Within this story, the border control motifs of control and closure, which were the subject of the previous chapter, have irregular migrants as their principal targets. This chapter examines the precise ways in which the discourse of the securitization narrates the onshore asylum seeker and the reasons why onshore asylum seekers pose such a sharp threat to the discourse of securitized migration. I argue that as result of this threat, they must be discredited and excluded from the category of the genuine asylum seeker. This is achieved via a series of narratives, which must counteract the possibility that onshore asylum seekers are “real refugees,” since “real refugees” have not lost all rhetorical legitimacy as a sympathetic figures of the imagination. Finally, I show that onshore asylum seekers are delegitimized by reference to this imagined “good” refugee who, even within securitization of migration discourses, is still imagined to exist somewhere.
In line with the logic of the securitization of migration, the location of the undocumented person has become a crucial determinant of his or her credibility and a central element in the “story” that determines the authenticity of asylum claims. I argue that the primary characteristic of the good refugee is that he or she exists geographically far away from the state, and therefore poses no threat to sovereignty, security or the imagined coherence of national borders.
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In my analysis, I am attentive to the structure and form of the stories told by members of parliament about who onshore asylums seekers are, as versus whom “real refugees” are, and the way in which their claims take the form of linear narratives. Narrative is our literary sense of how certain stories go together, and our expectations of their beginnings, their middles and their ends.205 Brooks asserts that the narrativity of the law needs analytic attention, in order to understand the place and role of narrative in legal matters.206 The stories that were imagined and told by members of parliament reveal the way in which narrative “belongs to our cognitive toolkit” and constitutes one of significant ways in which we understand and construct the world.207
The chapter is divided into three sections. In part one, I examine how and why the related categories of undocumented migrant and onshore asylum seeker are narrated as inevitable threats to the “common sense” of border control and securitizing migration.
The second part of the chapter outlines some of the specific narratives that are used to discredit and legitimately exclude onshore asylum seekers. The final section of the chapter argues that along with “bad asylum seekers,” a “good” refugee still exists within the discourse of the securitization of migration. I once again draw upon the parliamentary debates and primary materials regarding the policy of excision, but also expand my area of inquiry to successive Australian governments’ promotion and
205 Peter Brooks, “Narrative in and of the Law” in James Phelan & Peter J. Rabinowitz, eds., A Companion to Narrative Theory (Oxford: Blackwell Publishing, 2005) 415 at 415. 206 Ibid. 207 Ibid.
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celebration of World Refugee Day208 and the content and construction of Australia’s
“Offshore Refugee and Humanitarian Program.”209
Part One - Onshore Asylums Seekers: Contesting Sovereignty at the Border Onshore asylum seekers pose a direct threat to the logic of the securitization of migration as a result of their presumed geography, which imagines them as either approaching the border, at the border, or attempting to cross it without authorization.
As a result of their imagined and unauthorized location at the border, they directly challenge the myth of complete sovereignty at the border. This challenge arises in relation to onshore asylum seekers in particular (as opposed to undocumented persons not seeking asylum) as a consequence of the asylum seeker’s perceived right to enter the state under international law. This perceived right of entry flouts the vision of the state’s absolute control of its borders. I examine each of these features attributed to the onshore asylum seekers as they were narrated and overstated within the excision debates. Just like the narratives of the border and its functions, these narratives about onshore asylum seekers were framed in accordance with the discursive assumptions of the securitization of migration.
The right of onshore asylum seekers to enter the nation without the state’s authorization in order to make a protection claim under the international protection
208 This is an annual, international event, held on 20 June, established by the United Nations High Commission for Refugees. See UNHCR Australia, “World Refugee Day 2009: Real People, Real Needs”, online:
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regime is a conspicuous interruption to narrations of the nation state as completely and incontestably sovereign. The perceived rights of onshore asylum seekers challenge the discourse of the securitization of migration and its pretensions and objectives of complete border control. The threat to sovereignty posed by onshore asylum seekers featured heavily in the excision debates; onshore asylum seekers and their perceived rights were presented as a sharp threat to sovereignty and security and this was discursively resolved by delegitimizing and discrediting those who present with asylum claims at national borders.
The anxiety about the rights of asylum seekers to enter sovereign territory without the explicit authorization of the state was made apparent in the excision debates by way of a series of statements affirming Australia’s absolute and unassailable sovereignty at its borders. During the second reading of the original excisions, Ian Campbell explained the rationale for the bill as follows:
Australia is a country whose nation building record owes much to those who migrate here, and we will continue to welcome those who we invite. But we will not tolerate the violation of our sovereignty and we are determined to combat organised criminal attempts to land illegally on our shores.210
As the explanatory memorandum accompanying the Original Excision package of bills explained:
The amendments in these Bills are being made in response to the increasing threats to Australia’s sovereign right to determine who will enter and remain in Australia.211
210 Austl., Commonwealth, Senate, Parliamentary Debates (20 September 2001) at 27497 (Ian Campbell, Migration Amendment (Excision from Migration Zone) Bill 2001). 211 Explanatory Memorandum, “Migration Amendment (Excision from Migration Zone) Bill 2001” (2001) at 2.
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Senator Ian Robb similarly characterized the rights of asylum seekers as unacceptably interfering with Australia’s sovereignty, declaring that “[i]t is not a dereliction of
Australia’s sovereignty to prevent people from manipulating our migration entry arrangements. In fact, it is an act of asserting Australia’s sovereignty.”212
The rhetorical challenge posed by the formal rights of onshore asylum seekers to the principles (and myth) of absolute territorial sovereignty cannot be overstated. Macklin captures the significance of these rights when she writes that onshore refugee claimants are the “singular exception” to the state’s “unfettered right to admit or refuse any non-citizen in accordance with its own legal standards.”213 The refugee regime “constitutes the lone international derogation from the conventional equation of territorial sovereignty with border control.”214 Dauvergne agrees that the protection regime established under the Refugee Convention is the most significant exception to the sovereign right of a state to control who has the right to membership and to remain within the nation.215
The way in which the Refugee Convention disrupts the absolute right of the state to regulate activity at its border is through the requirement that a refugee who has arrived
212 Austl., Commonwealth, House of Representatives, Parliamentary Debates (10 August 2006) at 43 (Andrew Robb, Migration Amendment (Designated Unauthorised Arrivals) Bill 2006). See also Austl., Commonwealth, Senate, Parliamentary Debates (24 June 2002) at 2442 (Chris Ellison, Migration Legislation Amendment (Further Border Protection Measures) Bill 2002): Without the amendments made by this bill, should that vessel, or any other attempt to come either through the Torres Strait or to outlying islands of Australia, it would be possible for these unlawful arrivals to gain access to Australia's extensive visa application processes, and the accompanying very liberal interpretation of the Refugees Convention in Australia.212 213 Audrey Macklin, supra note 32 at 389. 214 Audrey Macklin, “Who is the Citizen's Other? Considering the Heft of Citizenship” (2007) 8 Theor. Inq. L. 333 at 344. 215 Catherine Dauvergne, supra note 13 at 47.
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in national territory has the right not be refouled by the receiving state to a situation where life or liberty would be threatened for a Convention reason.216 Equally relevant to border regulation is that the Refugee Convention sets out that a refugee should not be penalized for an unlawful mode of entry into the state, or for entering with false documents.217
The way in which asylum seekers are narrated as a major threat to sovereignty reveals that there is a particular narrative at play regarding the extent of the rights of onshore asylum seekers under international law. The substantive content of the rights of onshore asylum seekers under international law is far narrower than was implied by their presentation in the excision debates. The rights of onshore asylum seekers vis-à- vis the nation stated at their highest is a right not to be refouled, directly or indirectly, to a place where his or her life or liberty would be endangered.218 It is not a right of entry and is certainly not an unqualified right to remain within the receiving state, even in the event that one is found to be a refugee under the Refugee Convention
216 Convention Relating to the Status of Refugees, 28 July 1951, 189 U.N.T.S. 150, article 33(1) [Refugee Convention]. Susan Kneebone notes that this principle of non-refoulement has been understood as the underlying basis of the protection provided by the Convention. She cites Heerey, Carr & Tamberlin JJ in Minister for Immigration v Al- Sallal (1999), who write in their joint judgment that article 33(1) “is, so to speak, the engine room of the Convention”: Susan Kneebone, “The Rights of Strangers: Refugees, Citizenship and Nationality” (2004) 10 Austl. J. H. R. 33 at 33. 217 The Refugee Convention, article 31(1) sets out the following: “The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.” See further, Guy Goodwin-Gill, “Article 31 of the 1951 Convention Relating to the Status of Refugees: Non-penalization, Detention and Protection” in Erika Feller, Volker Turk & Frances Nicholson, eds., Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (Cambridge University Press, 2003). See especially Goodwin-Gill’s “Annex 3.1” at 234, which sets out the varying (and often limited) extents to which signatory countries have incorporated article 31 into domestic law. 218 See The Refugee Convention, article 33.
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definition.219 Sassen’s explanation of the limited nature of the right is apposite and particularly nicely put:
When it comes to power over entry, the sovereignty of the state is well established by treaty law and constitutionally… [T]he 1952 Convention on Refugees, which asserted the right to leave [the country of persecution], remained silent on the right of entry (better silent than evident contradiction, I suppose). The status of refugees and their right not to be forcibly returned are established in international law, but there is no corresponding right of asylum; that is at the discretion of the receiving state.220
Moreover, a range of legislative reforms aimed at limiting the application of international refugee law in developed countries has increasingly curtailed the rights of onshore asylum seekers. Limits have been placed on the right to claim onshore asylum at all; the quality and length of the period of asylum offered; the definition of refugee that is applied; and on the civil liberties and appeal rights of asylum seekers during the application process.221 States have plenary power to limit the apparently globalized and universal human rights regime as it applies to asylum seekers and to declare who may remain within the nation state and on what basis.222 The imagined unqualified right of entry (and power) of the asylum seeker recalls the process of
219 James C. Hathaway & Manuel Angel Castillo, “Temporary Protection” in James C. Hathaway, ed., Reconceiving International Refugee Law (Cambridge, Kluwer Law International, 1997) 1. 220 Sassen, supra note 92 at 70. Sassen notes that, by contrast, there is a right to entry as part of the Convention Governing the Specific Aspects of Refugee Problems in Africa (1969) adopted by the Organization of African States. 221 See generally Frances Nicholson & Patrick Twomey, eds., Refugee Rights and Realities: Evolving International Concepts and Regimes (Cambridge: Cambridge University Press, 1999). For an interesting look at interaction of international standards and domestic implementation in the United Kingdom, see Marie O’Sullivan, “The Intersection between the International, the Regional and the Domestic: Seeking Asylum in the UK” in Susan Kneebone, ed., Refugees, Asylum Seekers and the Rule of Law (Cambridge: Cambridge University Press, 2009), 228. 222 Of course, the power to legislate remains, even if the capacity to control and subdue all action at edge of the nation state does not. However, the complaint as it was expressed in the debates was predicated on the “right” of the asylum seeker to enter, even as the Australian government claimed that it had complete control over its borders. See for example: “It is clearly up to Australia to determine who can cross our borders, who can stay in Australia, and under what conditions such people can remain.” Austl., Commonwealth, House of Representatives, Parliamentary Debates (20 September 2001) at 27497 (Ian Campbell, Migration Amendment (Excision from Migration Zone) Bill 2001).
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inversion of roles noted in chapter one, whereby the nation state is vulnerable, in danger and at risk vis-à-vis the irregular (unarmed) migrant, who presents herself and demands entry at the border.223
The notion that undocumented migrants deliberately seek to exploit and abuse the extensive “rights” of genuine asylum seekers was articulated throughout the debates. It is a claim that signals the anxiety caused by the perceived rights of the onshore asylum seeker and their threat to sovereignty at the border. In describing the “critical challenges” that excising Australia would redress, Senator Robert Hill explained that,
“the continuing influx of authorized arrivals is a tangible indicator of increasingly sophisticated attempts to undermine the integrity of Australia’s refugee determination process.”224 He then added, as an example of asylum seekers’ “sophisticated” attempts to exploit the rights of genuine refugees, “the evidence is clear and growing – that large numbers of these people had, but disposed of, identifying documentation before arrival in Australia.”225
The logic of the securitization of migration entails that even those who hold the most partial and fragile of rights must be reconfigured as fraudulent, illegal, and dangerous if they pose a threat to the coherence of the border. The consequence of these constructions of the “unqualified rights” of the asylum seeker is that his or her presence at the boundaries of the state poses an unconcealed challenge to
223 Devetak supra note 33 at 106. 224 Austl., Commonwealth, Senate, Parliamentary Debates (24 September 2001) at 27603 (Robert Hill, Migration Legislation Amendment Bill (No. 6) 2001). 225 Ibid.
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securitization’s myth that the state can completely control who crosses into its territory.226
The onshore asylum seeker’s incompatibility with the project of securitizing migration was further articulated within the excision debates as a consequence of their location as either permanently at or approaching the border. In this way, the geography of the migrant, that is, where undocumented persons are imagined to be, is constitutive of who they are and the extent of the threat they pose to the security of the state. In the
2006 debate surrounding the proposal to excise the Australian mainland, a government minister invoked a mass of people “in line,” ready to come to Australia as soon as it could be confirmed that they would get their preferred “migration outcome:”
This debate is about 43 people in a leaky boat. The problem we have is that those 43 can very quickly become 430 or 4,300 because, even in this case, there were many lined up to come after if they had seen that these people had got a successful outcome.227
In his second reading speech supporting the further round of excisions, the
Immigration Minister conveyed clearly that Australian’s borders were at that very moment vulnerable to “thousands” of people who were “actively” planning to breach
Australia’s borders:
Without going into detail, we have credible information that people smugglers are still operating in Indonesia. There are several thousand people who are seeking movement by people smugglers. These smugglers are still
226 Sassen writes that idea that state can control borders has simply always been a myth: supra note 92 at 4. 227 Austl., Commonwealth, House of Representatives, Parliamentary Debates (10 August 2006) at 31 (Warren Enstch, Migration Amendment (Designated Unauthorised Arrivals) Bill 2006). The magical number 43 that Mr. Enstch refers to here represents the number of passengers on the canoe, which triggered the proposal of this particular round of excisions.
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actively seeking to enter Australia or through the Torres Strait to destinations in the Pacific.228
A departmental representative asked about the likelihood of further people arriving by boat from Indonesia responded thus:
The committee should be under no illusion that there is no possibility of further boat arrivals. Notwithstanding that the pipeline may have, as you say, slowed to a trickle, intelligence still suggests that there are a significant number of people who are willing to engage smugglers. The numbers are still in the hundreds, if not in excess of a thousand. It is not as if there is no-one there.229
The above quotes give a sense of a continuous flow of people either arriving at the border or preparing themselves for departure. The representation of onshore asylum seekers as terminally “at” or “approaching” the border was critical to the presentation of all undocumented people as a source of potential peril and a threat to securitization.
Crucially, the story that was told involved there always being increasing rather than decreasing numbers of people seeking to come, as part of a “continuing influx of unauthorised arrivals.”230 The imagined physical location of the undocumented person was a central part of the story that ultimately determined the security threat posed by him or her and thereby, the genuineness of the asylum claim that he or she may lodge at the border.
Confining narratives of undocumented migrants to those seeking entry into the nation state, but who have not yet entered the state, creates another layer of narratives about
228 Austl., Commonwealth, House of Representatives, Parliamentary Debates (20 June 2002) at 4017 (Philip Ruddock, Migration Legislation Amendment (Further Border Protection Measures) Bill 2002). 229 Austl., Commonwealth, Senate Estimates: Question Time, Hansard (6 August 2002) at 14 (Ed Killesteyn). 230 Austl., Commonwealth, Senate, Parliamentary Debates (24 September 2001) at 27603 (Robert Hill, Migration Legislation Amendment Bill (No. 6) 2001).
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who undocumented people are. This vision of the undocumented migrant erases those migrants already within the borders of nation states, crucial to their economies, living everyday lives and doing everyday things, albeit from an extremely precarious status.
This definition excludes the garment workers, fruit packers, generation to generation live-in care-givers, tourist over-stayers, family members and many others who have lived long lives within the boundaries of nation states to which they did not “belong”, undetected, for months, years, or decades.231 Even these categories of fruit-picker, the garment-maker and the day-labourer confine and overdetermine the figure of the undocumented migrant.232 Nonetheless, a more heterogeneous version of who undocumented migrants are, what they do, and where they can be found quickly undermines narratives of undocumented migrants as always seeking to illegally enter the nation and therefore as fraudulent, threatening, and dangerous.
Part Two - Good Refugees, Bad Asylum Seekers
In this section I look at some of the specific narratives that were used to discredit onshore asylum seekers within the excision debates in order to render their exclusion from the nation state both sensible and necessary. The first narrative I explore is the construction of onshore asylum seekers as economic refugees who are fraudulently
231 See also a recent study which found that 430,000 (that is 8 per cent) of the 4.3 million babies born in the United States each year have at least one parent who is an “illegal immigrant.” More than half of the mothers interviewed by the study had been living without authorization in the U.S.A the country for five years or more. Julia Preston, “Births to Illegal Immigrants are Studied” New York Times (11 August 2010). This statistic is interesting precisely because it indicates something about the lives of undocumented immigrants in the United States that conflicts with visions of undocumented migrants only at border fences, on the run or defined by “illegality.” 232 For a look at how the such assumptions about gender work in relation to certain classes of undocumented migrants, see Jacqueline Bhabha, “Border Rights and Rites: Generalisations, Stereotypes and Gendered Migration” in Sarah van Walsum & Thomas Spijkerboer, eds., Women and Immigration Law: New Variations on Classical Feminist Themes (New York: Routledge-Cavendish, 2007) 15.
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claiming refugee status, and therefore not genuine refugees. The next narrative is that those who are able to make their way to the border are too wealthy and mobile to be refugees. The final narrative I trace is that asylum seekers who assert their rights to refugee status by travelling to a safer place are insufficiently deferential and too impudent to deserve protection, even though they may be genuine refugees.
I argue that the discourse of the securitization of migration has rendered the geography of the discursive refugee critical to questions of the authenticity of his or her asylum claim and further, that the attempts to discredit asylum seekers rely on distinct narrative processes. The discrediting of the onshore asylum seeker has been achieved through the multiplication of stories that claim to know something universal about who those claiming asylum at the border are. These narratives are multiple and complex, and do not necessarily fall along a refugee/not refugee dichotomy; a significant feature of these narratives is the concession that even though some of those arriving by boat might be genuine refugees, they could still be rightfully excluded as part of the need to securitize all migration.
I contend that these narratives, which discredit onshore asylum seekers, emerged as a necessary part of the project of eliminating with the once rhetorically privileged place of the onshore asylum seeker. Securitization rhetoric and border protection policies have evolved such that the once privileged position of onshore refugees has now been subsumed into the general category of “the undocumented migrant.” Indeed, although asylum seekers have historically been, at least rhetorically, in a better position than the
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“mere” undocumented or economic migrant,233 the asylum seeker/refugee label now does little to save the credibility of those who arrive at border without authorization.234
Macklin argues that refugees “are vanishing from the territory of wealthy industrialized nations.”235 She clarifies that she does not refer to “the end of the legal and material reality of refugees arriving, but rather to the erosion of the idea that people who seek asylum may actually be refugees.”236
Asylum seekers as economic migrants as asylum seekers Not every undocumented migrant is an onshore asylum seeker and not every onshore asylum seeker is (or ever was) an undocumented migrant. In spite of this, in the excision debates, these categories were often discursively collapsed into each another.
Undocumented migrants were narrated as intending to fraudulently seek asylum in order to access “rolled gold, red carpet treatment”237 allegedly afforded to onshore asylum seekers. Frequently all those approaching Australia without documentation were narrated as “mere economic migrants,” fraudulently seeking asylum.
233 Sassen, supra note 92 at 68. See e.g. Dauvergne’s discussion of the drafting and reception of the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families: Dauvergne, supra note 13 at 19-28. 234 Dauvergne argues that now, more so than refugees, it is the victims of trafficking who trouble the insider/outsider dichotomy of migration law, since “[f]aced with victims of trafficking, some of the righteous indignation that defends prosperous borders crumbles away.” Even more than this, she argues that children are the best rhetorical victims since “their needs are acute, the damage they suffer is lifelong, and there is no troubling frisson of conscience about agency:” ibid. at 69, 75. See also Vanessa Pupavac, “Refugees in the ‘Sick Role’: Stereotyping Refugees and Eroding Refugee Rights,” UNHCR Policy Development and Evaluation Service, Research Paper No. 128 (2006). Pupavac echoes Dauvergne’s assessment of the place of the trafficked victim, noting that “sympathy and support for the economic migrant is limited, save where the migrant is cast as the female trafficked victim, as professionals seeks to guard the pristine figure of the traumatized victim against the populist hate figure of the self-seeking economic migrant” (at 14). 235 Macklin, supra note 78 at 365. 236 Ibid. 237 Austl., Commonwealth, House of Representatives, Parliamentary Debates (10 August 2006) at 7 (Warren Entsch, Migration Amendment (Designated Unauthorised Arrivals) Bill 2006).
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In his second reading speech supporting the Original Excision Act in the senate, Ian
Robb claimed that those who arrived at borders without documentation either had no claim to refugee status at all or had wilfully “bypassed effective protection arrangements in countries closer to their home, simply so they can achieve their preferred migration outcome.”238 Members of parliament used the phrase “seeking a migration outcome” to characterize the “true” motivations of those coming without documentation to Australia’s borders, who were thus seeking a “backdoor” migration outcome.239 Those who arrived at the border by boat were described as economic migrants who came “from countries where there is little risk of persecution, but which are simply less prosperous than Australia.”240
By narrating those approaching the border via sea as economic migrants who planned to claim asylum fraudulently or opportunistically, an intention or story is ascribed to all those who approach Australia by boat, as the comments of one government minister in 2006 reveal:
If I were in their position, I admit I would do everything to improve the way of life for my family. I would want to escape from an area that was oppressive. I
238 Austl., Commonwealth, Senate, Parliamentary Debates (20 September 2001) at 27497 (Ian Campbell, Migration Amendment (Excision From Migration Zone) Bill 2001). 239 Austl., Commonwealth, Legal And Constitutional References Committee, Committee Hearings, Hansard (6 August 2002) at 3 (Ed Killesteyn, Migration Legislation Amendment (Further Border Protection Measures) Bill 2002): By preventing asylum seekers from applying for protection visas, the excision provisions are an important and interrelated component of preventing people from achieving a backdoor migration outcome. 240 Austl., Commonwealth, House of Representatives, Parliamentary Debates (20 June 2002) at 4018 (Philip Ruddock, “Migration Legislation Amendment (Further Border Protection Measures) Bill 2002). See also: Many commentators forget just what a refugee is ... A refugee is not a person who merely travels by boat from the Middle East to Australia … A refugee is not an economic immigrant. Austl., Commonwealth, Senate, Parliamentary Debates (24 September 2001) at 27700 (Jim McKiernan, Migration Amendment (Excision From Migration Zone) Bill 2001), quoting directly from Paul Kelly, “Editorial” The Australian (25 July 2001).
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would want to escape to something that offered me greater economic prospects. I would want to seek a better way of life. But that is not the same as being a refugee.241
The above story about undocumented persons is a well-worn tale: undocumented persons are all seeking a better life; they exploit the system of asylum in order to expedite entry into the sovereign territory of developed countries; and they perceive life in developed nations as “better” and necessarily more prosperous than the life they have left behind.242 Significantly, by foretelling the intentions of migrants who arrive by boat, members of parliament believe they know something certain about who these people are. They place those arriving by boat within a linear narrative, which begins in a less prosperous country and ends with attempting to fraudulently enter Australia: they are not refugees, they are mere economic migrants and they are not owed protection. In order for this story to be plausible, as with all stock stories, a whole series of unacknowledged suppositions must first be accepted.243
In examining how the asylum seeker is collapsed into the category of the “mere” economic migrant it is not my intention to denigrate or diminish the rights of the economic migrant in favour of the apparently rights-rich and genuine asylum- seeker.244 Refugee advocacy campaigns have often wittingly played “the game” of
241 Austl., Commonwealth, House of Representatives, Parliamentary Debates (10 August 2006) at 12 (Bill Cadman, Migration Amendment (Designated Unauthorised Arrivals) Bill 2006). 242 This narrative, in which grasping economic migrants sully the image and standing of “genuine” refugees is by no stretch of the imagination confined to the Australian context. The former High Commissioner of the UNHCR stated in 2004 that “[i]n the past few years, the politicisation of immigration, confusion between refugees and economic migrants … have combined to erode asylum legislation in many states.” UNHCR, “Lubbers outlines progress, challenges as ExCom session opens” Media Release (4 October 2004). 243 Brooks, supra note 205 at 424. 244 There is a vast literature exploring and critiquing the rhetoric that sustains this dichotomy. Although
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differentiating between genuine asylum seekers and economic migrants, “helping the first by condemning the second.”245 Traditionally the rhetorical asylum seeker has inspired sympathy where the economic migrant has not, but whether and how this translated into material benefits or any form of justice has depended on the particular historical moment at which the asylum seeker arrives, as well as the national context into which he or she lands.246 Nonetheless, my point here is that asylum seekers at the border are no longer able to access this “privileged” status. Within a securitization framework, they are narrated as economic migrants to discredit their potential asylum claim, in opposition to genuine refugees, who are, above all, somewhere else.
In articulating her support for the further round of excisions in 2003, the then
Immigration Minister, Amanda Vanstone, revealed the series of assumptions required for the policy of excision to sensibly enact the exclusion of certain people. The
Minister was asked how the government would know which boats were carrying people without papers and seeking to claim asylum, and therefore which boats to
I explore the way in which asylum seekers are categorized as economic refugees in order to delegitimize their claims, it is beyond this scope of this chapter to do any justice to the issue of why “mere economic migrants” are characterized as utterly illegitimate by developed nations. See, however, Laurie Berg & Anna Samson, “Space for Economic Migrants? Poverty, Migrants and Australian Civil Society” in Helmut Achier, Marlines Glasius & Mary Kaldor, eds., Global Civil Society Yearbook 2009: Global Civil Society and Poverty Alleviation (London: Sage Publication, 2009) Chapter 8; Crépeau, Nakache & Atak, supra note 70 at 322-323 (for an overview of the way in which Western countries across the board have introduced ever stricter measures to prevent the entry of “illegal migrants” and limited the rights of irregular/economic migrants at all stages of the migration process). See generally Patricia Tuitt “Rethinking the Refugee Concept” in Frances Nicholson & Patrick Twomey, Refugee Rights and Realities: Evolving International Concepts and Regimes (Cambridge: Cambridge University Press, 1999). 245 Bigo, supra note 32 at 79. 246 Invariably, a refugee’s nationality, country of origin, and the reasons for departure have determined how he or she is treated by a particular nation state – even if the nations state purports to treat all refugees equally. See Robert Manne’s brief account of the varied ways in which the Australian government has treated onshore refugee populations on the basis of their nationality and the particular crises from which they are fleeing. Manne, supra note 108 at 1-8.
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interdict. She explained the process via which the Australian coastguard would rationally enforce the legislation as follows:
The government was always of the view that when boats coming here look like Indonesian fishing boats with Indonesian crew and people of some other origin on board it is likely the people will be seeking to come to Australia without the appropriate visas and will, when they get to Australia, either make an asylum claim or some other application for a visa. That has always been our clear understanding.247
The Minister’s language in the above extract is exceptionally imprecise and conjectural. She asks her fellow members of parliament to accept that some boats approaching Australia would evidently “look like” Indonesian fishing boats, and that if some people on board “look like” they are “of some other origin” to the Indonesians sailing the vessel, then these people of other origin are “likely” to be seeking asylum and thus the excision legislation will be applied to them. There is very little about this explanation that conforms to the minister’s avowed “clear understanding” of which boats ought to be regulated. Minister Vanstone then responded to the contribution of an opposition member who constructed an alternative narrative, by mockingly speculating that the people on board “might be coming here to watch the rugby grand final.” According to the Minister, the opposition member was “the only person who did not understand that there was a real possibility these people would make an asylum claim.”
The minister’s self-assured explanation of how the executive would know who falls under the legislation reveals there is a distinct narrative process at play, which must
247 Austl., Commonwealth, Senate, Parliamentary Debates (24 November 2003) at 17554 (Amanda Vanstone, Migration Amendment Regulations 2003 [No. 8]).
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supported by a series of suppositions in order to function. This particular narrative, however, is not as fail-safe as the minister implies. When the Australian coastguard sighted a boatload of people approaching Western Australia in 2002, the government gazetted a new set of regulations in order to excise the first islands that the boat would encounter as they suspected those on board would seek asylum if they reached
Australian territory.248 These regulations were rescinded the next day when the boat in question was found to be an illegal Sri Lankan fishing boat.249
The Minister’s explanation as to how excision and interdiction work and the excision of further islands due to the mischaracterization of a group of people on a boat is a remarkable example of the way in which particular narratives created by the law work to fix and determine who undocumented migrants are, what they plan to do, and consequently, the way in which the law will act upon them.250 Crucially, such narratives not only define a subject, but also simultaneously foreclose other narrative possibilities, insofar as they do not fit with the narrative pillars upon which the particular story rests.251 It provides a instantiation of Boyd White’s claim that every act of writing a legal rule or text requires that its author imagines the world in a certain way, just as much as the reading and interpretation of such rules rest upon how the a
248 The islands excised by the regulations were Bernier, Dorre, Dirk Hartog, and Faure: Coombs, supra note 97. 249 See “Backflips put islands back inside border” The West Australian (20 December 2002). 250 Robert M. Cover, “Foreword: Nomos and Narrative” (1983) 97 Harv. L. Rev. 4 at 7-9. 251 By way of comparison, it is interesting to note the way in which these narrative are location-specific, despite their implicit claim to be universally applicable. For example, the assumption that all undocumented migrants approaching the border will seek entry by way of claiming asylum is surely not so readily applied to certain terrestrial borders, where it is assumed that people primarily cross borders for other reasons, such as to seek employment, participate in day work, or sell smuggled goods. Indeed, a whole different set of assumptions is presented as holding true depending on which border is being crossed. See further Pablo Vila, Crossing Borders, Reinforcing Borders: Social Categories, Metaphors, and Narrative Identities on the U.S.-Mexico Frontier (Austin: University of Texas Press, 2000).
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particular reader imagines the world and how it works.252 The apprehension that a certain kind of people looked a certain way and would therefore seek asylum occasioned the overnight writing of a new set of regulations, excising further islands and redefining the meaning of crossing the border. These beliefs can also be related back to a series of assumptions about the danger of undocumented people: they are always coming towards the border, they will claim asylum fraudulently, and the state must control them.
Too much agency; too much money; too much mobility Recognizing the role of narrative in giving shape and meaning to events involves recognizing which details a particular narrative deems to be relevant to a particular story, or conversely, as irrelevant and belonging to a different story.253 Such determinations involve unacknowledged sets of beliefs, which are presented as natural and common sense. In this section I argue that the perceived agency, wealth, and mobility (and therefore the location) of the onshore asylum seeker were narrated as details that are relevant to and determinative of the probability that onshore asylum seekers are genuine refugees and concomitantly, whether they threaten the safety of the state. Departmental representative Ed Killesteyn summed up the discursive linking of mobility and the authenticity of an asylum claim:
If they have genuine asylum claims, there is no need for them to hop on a dangerous boat and risk their lives and the lives of their families to come to Australia. There is absolutely no reason at all.254
252 James Boyd White, supra note 65 at 41. 253 Peter Brooks, supra note 205 at 424. 254 Austl., Commonwealth, Senate Estimates: Question Time, Hansard (6 August 2002) at 19 (Ed Killesteyn).
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Within the excision debates, making a decision to travel to Australia was characterized as inimical to having a genuine need for state protection. Alternatively, being able to afford to “illegally” arrive at the border, just as much as being “illegal” itself, was brandished as evidence of the undocumented person selfishly and wilfully taking the place of more deserving refugees. Alan Cadman drew a sharp distinction between real refugees and those who are “too inventive” and “too wealthy” to ever fall into the category of a refugee. He asked parliament members to “think of Darfur and Sudan,” and to compare “the people Australia is bringing from those nations” with “the boat people who happen to get here because they have paid somebody or because they are inventive enough to get hold of a canoe and paddle to Australia.” He went on to note that there is “a huge difference between these two classes of people” and if we lose sight of then we lose sight of the purpose of Australia’s humanitarian efforts.255
Members of parliament returned to this portrait – of the onshore asylum seeker as being too capable and too wealthy to earn the nation’s sympathy or to require genuine protection – throughout the debates. There is an unmasked sarcasm in the protracted contribution of Bruce Billson below, which ridicules the authenticity of the persecution claimed by onshore asylum seekers because of their ability to plan their lives, travel, and move at all:
They are so persecuted that they are able to accumulate wealth. They are so persecuted that they are able to organise their affairs, get their family together, and pursue illegal immigration channels. They are so persecuted that they arrive in a transit country and meet up with people smugglers. They are so persecuted that they then travel to a destination where they meet up with somebody else. They are free to move, free to make those choices, free to exercise the pursuit of
255 Austl., Commonwealth, House of Representatives, Parliamentary Debates (10 August 2006) at 11 (Bill Cadman, Migration Amendment (Designated Unauthorised Arrivals) Bill 2006).
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what they think is a better life. They are so persecuted that they are able to do all of that…That is how persecuted they are. They can do all those things of their own free will, unimpeded, and pay for it.256
Members of parliament in favour of territorial excision dreamt up detailed life stories to demonstrate that “well heeled” asylum seekers were necessarily less worthy of protection than those without funds or the autonomy to flee their countries of origin or a refugee camp. In the quote below, the imagined onshore asylum seeker was not only lacking an asylum claim and financially secure before departure, but also a successful small business-owner:
Surely [genuine refugees] have to be preferred refugees to our country over someone who decides that they were displaced years ago through horrendous events in the Middle East or in Afghanistan, has settled and created their own business, accumulated wealth and has decided it is time to leave and pursue a better life in Australia. They have tried to get recognised as a refugee but, basically, it is about their economic circumstances. Their right to live a dignified and peaceful life is there, but they would perhaps rather be living in Australia. 257
Significantly, discrediting those who arrive at the border was not always done on the basis that they were not asylum seekers, but due to the fact that they were not the most desperate refugees, on account of their mobility, illegality, and breach of the border.
Arguing in favour of the excision of the entire Australian mainland, so that no onshore asylum seekers would have access to Australia’s determination processes, Kay Elson posed the following question:
256 Austl., Commonwealth, House of Representatives, Parliamentary Debates (19 September 2001) at 30963-30964 (Bruce Billson, Migration Amendment (Excision from Migration Zone) Bill 2001). 257 Government Member of Parliament, Bruce Billson rounded this off by saying: “I can understand that: this is the greatest country on earth; of course they would want to come here:” ibid.
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Why should someone who can afford to pay a people smuggler or have the opportunity to make the decision to attempt to enter Australia illegally have access to the Australian Refugee Review Tribunal or the Australian courts when a Sudanese refugee, waiting in a refugee camp for many years and desperately wanting to come to Australia, does not have access to these bodies?258
All of these narratives illuminate the relationship between discourse and geography, whereby in reality those “who employ smugglers fall under a range of immigration and refugee policies, but are all homogenously produced as criminal and their access to legal avenues limited.”259 Conversely, “if migrants have the resources to enter quietly – and therefore less visibly – through airports they are less likely to be intercepted, their arrival will be less publicized, and their access less restricted.”260 By constructing those who are smuggled by boat as the most affluent and mobile, and foreclosing other possibilities about who they might be or how wealthy they are, the government rationalized applying the harshest policy response to these people and justified their exclusion.261
There are of course other narrative possibilities – which is precisely what the above rigid claims about the significance of mobility and possession of (even) limited personal funds seek to eclipse. For example, when governments address the “crime” of
258 Austl., Commonwealth, House of Representatives, Parliamentary Debates (9 August 2006) at 34 (Kay Elson, Migration Amendment (Designated Unauthorised Arrivals) Bill 2006. See also the musings of Senator Nick Sherry, who questioned: Are people who can pay their way to Australia, who have the $4,000, $5,000 or $10,000, entitled to any greater compassion than the people who are still stuck in those camps? I say no, they are not. Austl., Commonwealth, Senate, Parliamentary Debates 24 September 2001 at 27733 (Nick Sherry, Migration Amendment (Excision From Migration Zone) Bill 2001). 259 Mountz, supra note 20 at xxvii. 260 Ibid. 261 See also Bhabha, supra note 232; and Nakache, supra note 76 from 198. Nakache troubles the timeworn forced/voluntary dichotomy in migration law, which she argues relies upon a grossly oversimplified account of the degrees of choice involved in all stages of the decision to migrate.
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people smuggling, these same inventive, opportunistic, and affluent unauthorized entrants are often rendered and read as victims, who are exploited and whose lives are risked by criminal and callous people-smugglers.262 Inside a law enforcement and transnational crime framework, and outside of a border control discourse, the
“victims” of people smuggling are once again legitimate subjects of sympathy and exploited refugees. However, members of parliament who focused on the great cost and privilege required for someone to enlist the services of people smugglers overlooked this particular narration of onshore asylum seekers.263 In the context of securitization, the smuggled person and the onshore asylum seeker alike have come to be considered as illegal migrants who have “willingly sought professional immigration assistance,” and who therefore cannot have a strong human rights claim.264
Genuine asylums seekers behaving badly In the parliamentary debates, the discredited or bad asylum seeker was not simply narrated as “not a refugee,” but in certain instances, as the wrong kind of refugee.
Senator Sherry described the problem that smuggled and onshore refugees create:
Whilst you have a cap on migration and on refugees, the reality is that, if you allow people into this country who pay their way— and ultimately many of them are accepted because they are legitimate refugees—they knock off
262 Former Australian Prime Minister Kevin Rudd made international headlines when he declared that people smugglers are “the scum of the earth” and that they should “rot in hell” Emma Rodgers, “Rudd wants people smugglers to 'rot in hell'” ABC News (17 April 2009); and “Rudd: Human smugglers 'scum of the earth'” CNN World (17 April 2009). 263 See also, for example: “[W]e have 12,000 places; let us make sure they go to the 12,000 most de- serving people who are suffering horrendous levels of persecution; not the people who can cash up their assets and pay a people smuggler.” Austl., Commonwealth, House of Representatives, Parliamentary Debates (19 September 2001) at 30963 (Bruce Billson, Migration Amendment (Excision from Migration Zone) Bill 2001). 264 Bhabha argues that such people “only become objects of compassion once dead or at death’s door:” Bhabha, supra note 232 at 27.
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someone who is stuck in a camp in Afghanistan or Rwanda or Burundi or the Sudan. 265
On the above view, refugees who travel by boat are not only “opportunistic,”266 they are personally responsible for deliberately “knocking off” other real victims, who are languishing in camps for real refugees. This is more than a claim about someone not being desperate enough to be a refugee. It is a claim about the bad character of an onshore asylum seeker, who wilfully and self-servingly takes someone else’s refuge and protection. In this way, the onshore asylum seeker was not only narrated as illegally crossing the border, and therefore dangerous, or as being too autonomous to be a genuinely deserving refugee. The decision to come to the border by boat, or at all, was depicted as too impudent and too impatient to be accepted by the state and was narrated as another basis for the exclusion of the onshore asylum seeker.
Former Minister for Immigration Amanda Vanstone made much of the idea that onshore asylum seekers have the audacity to try and choose the country where they will claim asylum. She characterized the decision to come to Australia as excessively entitled and presumptuous, comparing an asylum seeker’s decision to come to
Australia with the caprice of choosing one’s favourite chocolate. In 2003, the Minister explained the problem as follows:
People who are in need of protection obviously have a right to make that claim … What they do not have is a right to pick and choose who will hear the claim or who will provide the protection… It is not like a box of chocolates where you can pick the caramel, the pineapple cream or the coffee cream. It is not as
265 Austl., Commonwealth, Senate, Parliamentary Debates (24 September 2001) at 27733 (Nick Sherry, Migration Amendment (Excision From Migration Zone) Bill 2001). 266 Austl., Commonwealth, House of Representatives, Parliamentary Debates (10 August 2006) at 11 (Bill Cadman, Migration Amendment (Designated Unauthorised Arrivals) Bill 2006).
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though you can pick whichever place you want. If you are in need of protection … you do not have the right to say which country will hear it.267
In a similar vein, although without the condescending analogy, Ian Campbell raised the same complaint about onshore asylum seekers impertinently exercising a right never personally extended to them:
There are over 22 million refugees and people of concern to the UNHCR world wide and limited resources available to deal with them. The Refugees Convention does not confer a right on any of these people to choose their country of asylum.268
Referring to the practice of engaging people smugglers, Senator Campbell went on to state:
This form of organized crime is found throughout the world and preys on people who are unwilling, for whatever reason, to go through normal procedures for entry to the country of destination.269
It is the asylum seeker’s lack of deference and patience here that offends and results in their rational exclusion from the generous refugee protection program of the nation state. The onshore asylum seeker’s transgression is not simply constructed in terms of his or her illegality but is specifically articulated as a failure of patience and duty, and of quite literally not knowing one’s place.
267 Austl., Commonwealth, Senate, Parliamentary Debates (24 November 2003) at 17555 (Amanda Vanstone, Migration Amendment Regulations 2003 [No. 8]). 268 Austl., Commonwealth, Senate, Parliamentary Debates (20 September 2001) at 27497 (Ian Campbell, Migration Amendment (Excision From Migration Zone) Bill 2001). See also: “It is about giving thousands of people waiting in refugee camps around the world their chance to come to Australia, not leaving them waiting in the queue while others who come here illegally take their places in our humanitarian program:” Austl., Commonwealth, House of Representatives, Parliamentary Debates (10 August 2006) at 44 (Andrew Robb, Migration Amendment (Designated Unauthorised Arrivals) Bill 2006). 269 Austl., Commonwealth, Senate, Parliamentary Debates (20 September 2001) at 27495 (Ian Campbell, Migration Amendment (Excision From Migration Zone) Bill 2001).
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The once-privileged figure of the “onshore asylum seeker” has been re-imagined and reconstructed so as to deny the legitimacy of this category. The discrediting of the onshore asylum seeker has been achieved through the multiplication of stories about who claims asylum at the border, all of which work to construct those at the border as either illegal and dangerous, or in a more nuanced version of the story, lacking credibility and of “bad” character. What is also significant about these characteristics is that all relate to the asylum seeker’s location, and specifically, their presence at the border. Their decision to defy border controls and to reveal the “embarrassing leakiness” of the state is at odds with the securitization of the border, and thus prevents them from being included in narratives of who is a genuine and desirable refugee.270
All of these narratives have the same effect. Namely, they justify the deflection or expulsion of all undocumented persons at the territorial border. The rhetorical negation of the imagined onshore asylum seeker must take place so that the onshore asylum seeker can feasibly remain part of the non-specific and unmitigated threat posed by all outsiders to the nation under the securitization of migration. They are re- narrated in order to ensure that they too fall easily into “the abstractions of mass politics…which deny subjectivity and render individual histories generic and untellable.”271
270 Devetak, supra note 33 at 103. 271 Edward Said, “Reflections on Exile” (1984) 13 Granta 159 at 161.
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Part Three - Anywhere but Here: The Geography of Genuine Asylum Seeking In the Australian excision debates, an imagined “good refugee” was set against the discredited onshore asylum seeker. This good refugee was deployed to further delegitimize onshore asylum seekers and, just like the “illegal” or impertinent asylum seeker at the border, was also the product of rich narratives about who “real” refugees are and where they are located. I contend once again, that location and geography were crucial elements of the narratives which determined who should be recognized as a “good” and genuine asylum seeker and who should be excluded from these categories.
The extent to which these good refugees were characterized as genuine and not dangerous was connected to the simple fact that they do not make their way to or arrive at the border. I demonstrate that narrations of the most genuine refugees, as they were articulated in the Australian excision debates, are marked by two key characteristics: immobility and desperation, whereby “genuine” need was measured by reference to the levels of mobility and agency attributed to the imagined refugee. The equation was in many cases a straightforward one: the more limited the mobility and agency possessed by an (imagined) person, the more likely they were to be a genuine refugee.
In this section I maintain that the way in which the Australian government compared its onshore refugee program with the onshore humanitarian program in the excision debates was a key part of a process whereby by a good refugee was constructed and narrated. Refugees accepted by Australia as part of its offshore program came to
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represent the “good” and genuine refugee. Within both the parliamentary debates and the government statements addressing excision, government ministers repeatedly cited
Australia’s offshore refugee-intake program in response to criticisms that they were not respecting the rights of onshore asylum seekers.272 According to former
Immigration Minister Amanda Vanstone:
Australia lives up to its responsibilities in terms of people who are seeking asylum. Our offshore protection policy means that anyone who wants to make a claim for asylum has the capacity to make it and have their claim heard. If it is decided that they need protection, that protection is offered… Australia takes its fair share of those people.273
Government senator Alan Cadman was explicit in making similar claims during the
2006 debates:
I completely refute the statement that Australia has played a negative role in the settlement of refugees. Australia leads the world with its settlement and compassionate programs … Proportionately we have one of the largest programs in the world for the size of our nation and for our capacity to settle refugees.274
The implications of the above comments are that those who come to Australia under its offshore resettlement program comprise Australia’s “real” refugee program and that those who come without authorization and seek asylum upon arrival are not the refugees to whom Australia owes protection obligations. This claim is one that posits a relationship between place, mobility, and genuine refugee status. Those who move, or who are no longer far away, are not as indisputably refugees as those who remain at
272 See e.g. Philip Ruddock, “World Refugee Day”, Media Release (20 June 2001), online:
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a distance. It is a story about everyone in far off locations being more entitled to refugee status than anyone who has made their way to border. Defining Australia’s refugee program as chiefly comprised by its offshore resettlement program ensures that those who fracture the logic of border control by claiming asylum onshore are excluded from the stories of tremendous suffering and need that were told in regards to the offshore refugee entrants.
The presentation of the offshore program as Australia’s “real” refugee program was frequently done on the basis that people who are “stuck” in refugee camps are authentic refugees, and by extension, that the refugee camp is the principal source of real refugees. As Minister Kay Elson put it, excision legislation strengthened border protection and national security because it ensured “illegal entrants” were not given a processing advantage over “those unfortunate people seeking asylum in refugee camps in Africa.”275
Thus, it is not only the distance of the refugee from the border that determines his or her authenticity and status. The specific location of the refugee is once again critical in determining their status. The geography of suffering was that of the refugee camp (in an often unspecified “African” country). Parliamentarians imagined “dispossessed and desperate refugees in camps in places like Rwanda, Burundi, Sudan and Kosovo,”276
275 Austl., Commonwealth, House of Representatives, Parliamentary Debates (9 August 2006) at 34 (Kay Elson, Migration Amendment (Designated Unauthorised Arrivals) Bill 2006). 276 Austl., Commonwealth, Senate, Parliamentary Debates (24 September 2001) at 27733 (Nick Sherry, Migration Amendment (Excision From Migration Zone) Bill 2001).
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as deserving of compassion. These refugees were not only situated within the camp but they were immobilized and had no way of leaving without assistance:
Having recently visited a refugee camp at Kakuma in Kenya, on the Sudanese border, I know what circumstances these unfortunate people face…These are people living in dire conditions. Many of them wait for a number of years before being accepted by another country. They cannot afford to travel through various nations. They cannot afford to pay people smugglers to get them where they ultimately want to end up. They are genuine...277
Ministers who referred to Australia’s offshore refugee program to justify the exclusion of onshore asylum seekers often referred to camps not only as the real source of refugees, but characterized camps as holding “the most desperate refugees.” As
Senator Robb put it:
Every year Australia welcomes thousands of refugees from camps in some of the most desperate parts of the world, many of whom have been waiting many years for resettlement and none of whom would have any chance of reaching Australia as unauthorised boat arrivals.278
The above quote manages to include each of the three motifs that dominated constructions of the good refugee: immobility in a far off camp, desperation, and patience or deference, all of which relate directly to the geography or location of the person in question.
277 Austl., Commonwealth, House of Representatives, Parliamentary Debates (9 August 2006) at 34 (Kay Elson, Migration Amendment (Designated Unauthorised Arrivals) Bill 2006). 278 Austl., Commonwealth, House of Representatives, Parliamentary Debates (10 August 2006) at 42 (Andrew Robb, Migration Amendment (Designated Unauthorised Arrivals) Bill 2006). See also the comments of former immigration minister Philip Ruddock in regards to the further excisions in 2002: Currently the United Nations High Commissioner for Refugees estimates there are some 19.7 million persons of concern around the world … Australia aims, through its humanitarian program, to assist in resolving the situation of those people who have the most urgent need for resettlement outcomes. Philip Ruddock, House of Representatives, “Migration Legislation Amendment (Further Border Protection Measures) Bill 2002,” Second Reading Speech (20 June 2002) at 4018.
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Members of parliament constructed fixed narratives about who suffers the most, how they suffer, and where they suffer. These figures are inescapably imaginary. The members of parliament are not describing individuals’ lives, they are describing imagined characters and attributing imagined stories to them:
I will go into bat every time for those people whose lives are at risk, whose children are being tortured and raped, whose homes have been destroyed and bombed, whose crops have been destroyed, whose cattle and livestock have been taken by invading armies. That, to me, is a refugee program...279
Like all acts of narrative, members of parliament here are not simply disinterestedly recounting events. Their narratives give these imagined events a shape: “they give them a point, they argue their import, and proclaim their results.”280
In his influential piece on archetypal figures within human rights narratives, Mutua argues that human rights discourse is characterized by the need for “savages, saviours and victims.”281 The refugee whom nation states are still willing to protect conforms closely with Mutua’s description of narratives of the ideal victim, who is powerless, despairing, poor, and innocent. Human rights narratives have a tendency to suggest that victims are generally non-white and non-Western and that their saviours are white and newly virtuous:
human rights can been seen as a project for the redemption of the redeemers, in which whites who are privileged globally as a people- who have historically visited untold suffering and savage atrocities against non-whites- redeem themselves by “defending” and “civilizing” “lower,” “unfortunate,” and “inferior” peoples.282
279 Austl., Commonwealth, House of Representatives, Parliamentary Debates (10 August 2006) at 12 (Bill Cadman, Migration Amendment (Designated Unauthorised Arrivals) Bill 2006). 280 Brooks supra note 205 at 419. 281 Makau Mutua, “Savages, Victims, and Saviors: the Metaphor of Human Rights" (2001) 42 Harv. Int’l L.J. 201. 282 Ibid. at 207.
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These narratives of the desperate refugee belong to a liberal fantasy of the state-as- saviour.283 Such a fantasy helps explain why neither the archetypal refugee nor the rhetoric of refugee rights has been completely abandoned by Western liberal democracies. Despite the exigencies and the exclusionary logic of border control, the state continues to claim that real refugees are still being saved.
This insistence that refugees who are suffering the most are necessarily elsewhere, and could never manage to reach the borders of developed states crucially functions within the parameters of the securitization of migration. The focus on those who are offshore constructs those who seek asylum at the border as not necessarily fraudulent but certainly less in need of protection. It paints a stylized picture of who (and where) refugees are and who (and where) they are not. Comments that applaud Australia’s offshore refugee intake, whilst criticizing asylum seekers who travel independently to
Australian territory subtly determine whom we can definitely call a refugee as opposed to those who are not authentically in need and may therefore still be a threat to the security of the state. One government minister argued that excision was necessary because if it were not implemented, the government would condemn “the most needy refugees to rot and die in African detention camps while we give priority to others comparatively safe and well in Indonesia.” 284
283 Ibid. at 203. 284 Austl., Commonwealth, House of Representatives, Parliamentary Debates (10 August 2006) at 6 (Cameron Thompson, Migration Amendment (Designated Unauthorised Arrivals) Bill 2006).
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The narratives created by the law regarding onshore asylum seekers function by way of unrecognized assumptions, procedures and language and must be “sufficiently plausible” in order to be effective.285 This plausibility depends “to some extent on what Roland Barthes liked to call doxa, that set of unexamined cultural beliefs that structure our understanding of everyday happenings.”286 Those whom the government handpicked from faraway refugee camps were narrated by members of parliament as more plausibly refugees and in need of our help than anyone else. The assumed relationship between distance and authentic suffering applies to migration politics beyond Australian shores. As Dauvergne puts it:
When masses of people flow over the border from Burma to Thailand, from Rwanda to Burundi, or from the Sudan to had and the Central African Republic, we are prepared to assume that they are refugees, or even that they should be considered as such despite not fitting within the letter of the law. However, when the border being crossed is closer to home in the prosperous West, and the politics one is fleeing have slipped from the front pages, the assumption is often the inverse.”287
Much like the parliamentary debates on excision, the material produced regarding government-sponsored World Refugee Day celebrations demonstrates that “good” refugees are those whom the government selects and extracts from far-off places.288
The media releases and activities of successive Australian governments on this day reveal the absence of any mention of Australia’s onshore asylum application program
285 Peter Brooks, “Narrative Transactions - Does the Law Need a Narratology?” (2006) 18 Yale J.L. & Human 1 at 11. 286 Ibid. 287 Dauvergne, supra note 13 at 49. 288 See United Nations High Commissioner for Refugees Australia, “World Refugee Day 2009: Real People, Real Needs”, online:
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or onshore refugees.289 World Refugee Day, is, awkwardly enough, “celebrated” annually on 20 June. It is an international event, described and promoted by the
UNHCR as a series of events around the world to “highlight the plight of refugees under our care and to advocate on their behalf for the help they need [and] to think about what it means to be one of those millions of individual human beings.”290
The press release of the Australian immigration minister for World Refugee Day in
2009 was entitled “Commitment to Helping the Forgotten Refugees.” In the press release, the minister stated, “Australia's humanitarian commitment has extended its reach to new parts of the world to target the ‘forgotten’ refugee populations.”291 He then went on to point out that Australia’s humanitarian program had focused on the resettlement of people in “some of the most desperate situations in the world.”292 The press release makes clear that Australia not only helps asylum seekers, but as a nation helps the most vulnerable populations and the Minister is keen to number-crunch and to iterate the various camps from which the refugees have come.293 Themes of profound desperation and helplessness are prominent in each press release concerning
World Refugee Day and this desperation invariably attaches to those who are very far away.
289 See Chris Evans, “Commitment to helping the forgotten refugees” Media Release (22 June 2009); Chris Evans, “Australia balances refugee priorities” Media Release (20 June 2008); and Philip Ruddock, “World Refugee Day”, Media Release (20 June 2001). 290 United Nations High Commissioner for Refugees, “World Refugee Day 2010”, online:
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In another World Refugee Day press release in 2001 the then Immigration Minister waxed lyrically:
As someone who has seen first hand the reality of refugee camps in Africa, the Balkans and the Middle East, it is important that Australia continue to play a role in offering places to these needy and profoundly desperate people. Most cannot return home and many are not safe where they are, but with the continuing influx of people arriving on our shores illegally, it is becoming increasingly difficult to provide them resettlement places.294
In each press release there is a glaring silence surrounding onshore refugees.295 The asylum seekers on excised territories are clearly not, in these government ministers’ views, the refugees for whom World Refugee Day is intended.
The Australian government goes to great lengths to distance the offshore humanitarian program from issues of national security, border-crossings, and border control. One of the main government-produced brochures about Australia’s refugee and humanitarian intake (entitled “Refugees and Humanitarian Issues: Australia’s Response”) makes no reference to the media reports placing “thousands” of people in Indonesia waiting to flood Australia’s shores, who were frequently invoked during the excision debates as potential asylum seekers.296 The booklet, written outside of a migration and security context, is 52 pages long and has only this to say about undocumented arrivals and their mode of entry:
The overwhelming majority of around 4000 people who seek Australia’s [onshore] protection each year arrive lawfully by commercial aircraft. Asylum seekers arriving by boat in an unauthorized manner constitute a very small
294 Ruddock, “World Refugee Day”, supra note 289. 295 Ibid; see especially Evans, “Commitment to Helping the Forgotten Refugees”, supra note 289. 296 Department of Immigration and Citizenship, “Refugee and Humanitarian Issues: Australia’s Response” (June, 2009), online:
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proportion of the total and have their claims considered on Christmas Island.297
The description of “onshore entry persons” within the excision debates and a security context frequently referred to the illegal arrival by boat of “thousands of people to this country.”298 Here, however, those who arrive by boat are dismissed with a distinct lack of concern, as “a very small proportion of the total.” 299
The absence of either panic or unease about the “very small proportion” of people who arrive either by boat or by plane without documentation is, on one view, an attempt to convey the success of border control policies, which the reader is positioned to believe have minimized onshore arrivals. However, at the same, the downgrading of the threat posed by undocumented persons must also be understood as result of the context in which the publication is written. This context is one marked by humanitarian assistance and action. The tone, images, and content of the booklet make it easy to overlook that the “onshore humanitarian program” – the subject of one of the booklet’s chapters – is comprised of the same set of policies and statutes that are characterized as part of Australia’s border protection and national security policies in other contexts, and largely administered by the same government departments and executive officers.
297 Ibid. at 28. 298 Austl., Commonwealth, Senate, Parliamentary Debates (24 June 2002) at 2441 (Chris Ellison, Migration Legislation Amendment (Further Border Protection Measures) Bill 2002). 299 Though note, contrary to the impression given here, the asylum seekers interned on Christmas Island and intercepted as part of the policy of territorial excision represent at least one quarter of the onshore refugee program: Department of Immigration and Citizenship, supra note 296 at 28 (Figure 6: New Asylum Applications in Industrialized Countries during 2008).
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In this booklet the government is not addressing migration or security, but rather outlining its humanitarian program. The government is publicizing its own largesse, its humanitarian goals and its achievements. A self-congratulatory and optimistic problem-solving tone characterizes the text in the booklet. It declares at the start that in reading the booklet “[y]ou will see how Australia works with organizations such as the UNHCR to help resolve refugee crises,” and goes on to say that “it is inspiring to hear about the journeys and to see the contributions that refugees are making to the
Australian community.”300
The booklet is sprinkled with inset-boxes, often containing sympathetic portraits of individuals who are in some form of hardship from around the world, captioned with a brief description such as “[a]n Afghan youth provides reassurance and comfort to his younger brother”301 or “[a] community nurse offers assistance to a sick woman and her child.”302 One is positioned so as not to question whether the people who are depicted are genuine refugees, even though the descriptions accompanying them do not always indicate or confirm their refugee status. These people, whom Australia accepts from far away places and as offshore entrants, are presented as refugees and the program is described as part of Australia’s contribution to “protecting refugees who have been forced to leave their homes by armed conflict and human rights abuses.”303
300 Department of Immigration and Citizenship, supra note 296 at 5. 301 Ibid. at 20. 302 Ibid. at 9. 303 Ibid. at 8.
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In contrast to the onshore asylum program, the method of refugee intake under
Australia’s offshore program is consistent with the logic of securitizing migration. It allows the government to choose those who will benefit from a predetermined number of humanitarian places available each year, and none of these people come anywhere near the border until they have been completely sanctioned to do so by the Australian government. The program is a manifest example of the kind of control of migration that the securitization of migration has as its ultimate goal. Each year Australia determines precisely how many people will be accepted under the program,304 specifies the regions from which it prefers the humanitarian entrants will be drawn, and handpicks individuals from UNHCR referrals for resettlement in Australia.305
The offshore program therefore involves the state carefully determining who comes to the nation and on what terms. The program is planned and orderly. Crucially, it does not displace the State’s control of the border, nor its role as the giver of assistance, and the “other” as the receiver of assistance. The program is framed as an act of humanitarianism, which is characterized by beneficence and bestowal rather than equality and justice.306 The decisions about who may enter the nation under this program belong to the realm of policy, where unfettered and non-compellable
304 By way of example, the quote set under the program for 2009-2010 was 13750 entrants. For a table outlining the number of humanitarian entrants from 2003-2009, see Department of Immigration and Citizenship, “Fact Sheet 60 – Australia's Refugee and Humanitarian Program”, online:
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discretions confer plenary power over who enters the state and on what terms.307 Nick
Bolkus, a member of the opposition, summarized the features of an offshore program that make it so supremely congruent with securitization’s goal of unfettered control of migration:
I think the success of our migration policy program comes directly from the fact that as a nation we control who can come in. We have always shown firmness tempered by compassion. We have always controlled the size and the composition of the program.308
Conclusion Asylum seekers who make their way to borders of developed nation are discredited because of their capacity to undermine the sovereignty of the state at its borders and the national project of securitizing all migration. The narrative processes by which onshore asylum seekers are discredited are multiple and complex; most significantly, they seek to undermine the credibility of the onshore asylum seeker by renarrating all those who arrive at the border without authorization as legitimate subjects of exclusion.
Within these narratives, the geography of asylum seekers, where they are physically located when they encounter the state, has become a crucial determinant of whether they genuinely deserve asylum. Always lurking somewhere within these narrations is
307 Dauvergne captures the way in which migration regulation is characterized by a high degree of discretion in that it has “a capacity to maintain a fixed law-like appearance while also being infinitely malleable.” She writes that migration laws provide “both the appearance of a boundary and the convenient absence of fixity, like melting and refreezing ice sheets.” Dauvergne, supra note 13 at 7-8. 308 Austl., Commonwealth, Senate, Parliamentary Debates (24 September 2001) at 27727 (Nick Bolkus, Migration Amendment (Excision From Migration Zone) Bill 2001). See also: We need to establish a principle so that everyone throughout the world knows that the only people allowed to cross our borders will be people who cross the borders with our consent. We will accept a proportion of refugees, as the government has outlined. Austl., Commonwealth, House of Representatives, Parliamentary Debates (9 August 2006) at 117 (Mr Slipper, Migration Amendment (Designated Unauthorised Arrivals) Bill).
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a claim about the relationship between geography and the authenticity of the asylum claim. Asylum seekers are increasingly defined and understood by reference to their proximity to the state and the extent to which they challenge securitization’s construction of the border as a site of control and closure. Macklin writes that those who criticize onshore refugee programs as “too soft” on asylum seekers,
are quick to admit there are millions of “real” refugees in the world today. These refugees, however, are necessarily elsewhere, suffering quietly and passively in squalid camps faraway… As soon as these people clamber onto the back of a truck, stow away in the hold of a ship, or board a plane with false documents, they become illegal’s.309
309 Macklin, supra note 78 at 366.
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CONCLUSION The law’s way of imagining the world is not pre-given or value-free, but functions as a result of social and discursive processes. So too, the law’s construction of social spaces and categories of people is neither self-evident nor fixed in time or place. Law, like any discourse or set of propositions, must imagine the world in a certain way and then narrate it accordingly.310 This thesis has focused on the legal and social construction of the undocumented migrant, the asylum seeker, and the space of the territorial border. It has argued that these subjects have become increasingly defined and understood in accordance with the restrictive and singular logic of the securitization of migration.
In the first chapter I outlined the central claims made by the discourse of the securitization of migration in order to critique the assumptions that are presented as common sense regarding the relationship between the territorial border, the definition and safety of the nation state, and undocumented migrants at the border. In the remaining two chapters I explored the policy of excision as a representative instance of migration and border policy that is dictated and defined by the logic of the securitization of migration. Using the parliamentary debates surrounding the policy of territorial excision in Australia, these chapters explored the narratives that were deployed by members of parliament to justify the regulation of the space of the border, as well the lives of those who encounter the border without authorization.
310 Boyd White, supra note 65 at 41.
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My focus throughout this thesis has been on the role played by narrative and geography in the law’s construction of its subjects. The securitization of migration has led to a focus on the border as a site of control, with the geography of the border becoming increasingly configured as fixed and stable. This has taken place even as securitization’s fixation on control of national borders has simultaneously meant that state action frequently extends beyond, shifts and redefines national limits, vis-à-vis undocumented persons in particular.
The way in which securitizing discourse imagines these subjects corresponds remarkably poorly with the range of ways each subject can be described and understood (and therefore regulated) when the assumptions and narratives that constitute security discourses are exposed and rejected as the “most sensible” way of imagining the world. I have argued that these narratives are not only frequently inaccurate, and inescapably acts of imagination, but that they work to actively obscure and foreclose other ways of thinking about each of these subjects.
The words “border,” “control,” and “migration” have come to be instinctively and unquestioningly connected. In any permutation, these words appear to fit comfortably together and strike one as easily associated and linked. The Australian government’s attempt to defy both grammar and the unwieldy geography of the nation’s borders by excising the nation and then parts of the nation from itself conforms precisely with securitization’s objective of complete control of irregular migration and the border.
Describing the space of the border and the figure of the undocumented migrant outside this logic exposes the multiple and contingent nature of territorial borders. How
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borders are understood shift constantly, depending on which part of the border is being described, what regulatory role the border is performing and in relation to whom.
Equally, questioning the discursive assumptions of securitization allows the overdetermined figures of the undocumented migrant and asylum seeker to be freed from representations defined by illegality, danger, and fraud, and each subject can be understood by reference to more than the alleged threat their always-imminent arrival poses to the imagined border.
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Appendix A: Maritime Boundaries and Application of Excision Legislation.*
* For the original map, see Department of Immigration and Citizenship, “Fact Sheet 81 Australia's Excised Offshore Places: Excision Places Map,” online:
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