Crimes of exclusion: The Australian state’s responses to unauthorised migrants Michael Grewcock A thesis submitted in fulfilment of the requirements for the degree of Doctor of Philosophy Faculty of Law University of New South Wales November 2007 Contents Originality statement v Copyright statement vi Authenticity statement vi Acknowledgements vii Abbreviations and acronyms ix Table of cases xv Abstract xvii Introduction: ‘I was like a camera. I remember everything’. 1 Chapter One: Literature review – state crime and refugees 12 1.1 Introduction 12 1.2 Towards a definition of state crime 12 1.2.1 State crime as a legal concept 17 1.2.2 State crime as a criminological concept 19 1.3 Defining the state 24 1.4 The state’s monopoly of force 27 1.5 Legitimacy, hegemony and the state 30 1.6 Human rights and state deviance 33 1.7 Refugees, rights and the state 42 1.8 Conclusion 49 Chapter Two: Forced migration, refugees and the state 51 2.1 Introduction 51 2.2 State crime and forced migration 52 2.3 The sources of forced migration 57 2.4 Forced migration and the camp 67 2.5 The Western exclusion zones 76 2.5.1 The externalisation of border controls 77 2.5.2 Declaring war against smuggling and trafficking 84 2.6 Conclusion 93 Chapter Three: From white Australia to multiculturalism 94 3.1 Introduction 94 3.2 Nationalism, white Australia and the colonial settler state 95 3.3 The foundations of white Australia 100 ii 3.4 White Australia, refugees and resettlement 112 3.5 ‘Boat people’ and border enforcement 120 3.6 Multiculturalism and exclusion 130 3.7 Conclusion 141 Chapter Four: State of denial - creating the illegitimate refugee 143 4.1 Introduction 143 4.2 Enforcing resettlement 144 4.3 Debasing on-shore asylum 154 4.4 Mandatory detention and the new legal regime 162 4.5 Detention and the criminalisation of unauthorised migrants 174 4.6 Conclusion 177 Chapter Five: Declaring war in the Pacific 179 5.1 Introduction 179 5.2 The birth of ‘border protection’ 180 5.3 The ‘Tampa crisis’ 189 5.3.1 The military response 189 5.3.2 Dehumanising ‘the enemy’ 195 5.4 The Pacific Solution 198 5.5 Expulsion and repatriation 206 5.6 The ‘war’ on people smuggling 214 5.7 Conclusion 225 Chapter Six: The Australian gulag 228 6.1 Introduction 228 6.2 The detention complex 232 6.3 Detention for profit 237 6.4 The culture of containment 244 6.4.1 The Cornelia Rau case 245 6.4.2 The Vivian Alvarez Solon case 248 6.4.3 The lack of accountability 250 6.5 A system of abuse 254 6.6 Children in detention 262 6.6.1 The Shayan Badraie case 266 6.6.2 A new regime? 268 6.7 Resistance and control 269 6.8 Conclusion 276 Chapter Seven: State deviance and the ideologies of exclusion 278 7.1 Introduction 278 7.2 Lineages of state crime 279 7.2.1 The parliament, bipartisanship and the bureaucracy 281 7.2.2 The judiciary and the stamp of legality 287 iii 7.3 The ideologies of exclusion 297 7.4 Exclusion and state deviance 310 7.5 Conclusion 317 Epilogue: Endgames 319 Bibliography 325 iv Originality statement ‘I hereby declare that this submission is my own work and to the best of my knowledge it contains no materials previously published or written by another person, or substantial proportions of material which have been accepted for the award of any other degree or diploma at UNSW or any other educational institution, except where due acknowledgement is made in the thesis. Any contribution made to the research by others, with whom I have worked at UNSW or elsewhere, is explicitly acknowledged in the thesis. I also declare that the intellectual content of this thesis is the product of my own work, except to the extent that assistance from others in the project’s design and conception or in style, presentation and linguistic expression is acknowledged.’ Signed Date v Copyright statement ‘I hereby grant the University of New South Wales or its agents the right to archive and to make available my thesis or dissertation in whole or part in the University libraries in all forms of media, now or here after known, subject to the provisions of the Copyright Act 1968. I retain all proprietary rights, such as patent rights. I also retain the right to use in future works (such as articles or books) all or part of this thesis or dissertation. I also authorise University Microfilms to use the 350 word abstract of my thesis in Dissertation Abstract International (this is applicable to doctoral theses only). I have either used no substantial portions of copyright material in my thesis or I have obtained permission to use copyright material; where permission has not been granted I have applied/will apply for a partial restriction of the digital copy of my thesis or dissertation.' Signed ……………………………………… Date ………………………………………… Authenticity statement ‘I certify that the Library deposit digital copy is a direct equivalent of the final officially approved version of my thesis. No emendation of content has occurred and if there are any minor variations in formatting, they are the result of the conversion to digital format.’ Signed ……………………………………… Date …………………………………………. vi Acknowledgements This thesis could not have been written without the assistance of the Faculty of Law at the University of New South Wales. I would like to thank all those concerned for providing excellent working facilities, particularly in the new building, and ensuring there was an environment conducive to study. I also thank the University for providing me with the University Postgraduate Award that helped finance two years of my research. There are a number of individuals in the Faculty who deserve particular mention. My supervisor, David Brown, was supportive and constructive throughout and took the time to read carefully and comment on every draft chapter. Jane McAdam provided helpful comments on sections of chapter two and various others lent books and words of encouragement along the way. My fellow postgraduate students, especially Emily Crawford, Dominique Dalla Pozza and Catherine Bond, not only provided congenial company but also tolerated with great equanimity my numerous requests for assistance with the computer. Many people helped me pull together the material required for this thesis. The faceless individuals who responded to my stream of email requests to Interlibrary Loans always seemed to find the obscure text I was seeking, while the more identifiable members of staff at the National Archives were of great assistance. My old comrades and friends, Phil Griffiths and Ian Rintoul, were a mine of information on the white Australia policy and the recent campaigns for refugees’ rights. My thanks also to Tamra Palmer for her proof reading. This project first took shape in London, where I lived between 1989 and 2002. Penny Green, with whom I engaged in almost daily conversations about criminology and much else during that time, encouraged me to dip my toe into the world of academic research. Phil Marfleet, convenor of the Refugee Studies program at the University of East London, supervised my MA in 2002 and encouraged me to write something about Australia. vii Various aspects of my research have been published in tentative form since then. An article jointly written with Penny Green appeared in a special issue of Current Issues in Criminal Justice devoted to refugees and criminology in July 2002. A follow up article based on my MA dissertation was published in the same journal in November 2003. The themes of those articles are fully developed in chapter two of this thesis and were also partly rehearsed in a chapter for Maggy Lee’s edited collection, Human Trafficking. Some of the material on state crime in chapter one provided the basis for a chapter in the forthcoming Critical Criminology Companion, edited by Thalia Anthony and Chris Cunneen. The discussion of the cases of Cornelia Rau and Vivian Alvarez Solon in chapter six also draws on an initial commentary in Current issues in Criminal Justice in November 2005. However, having spent over three years on this thesis, the greatest debts are personal. Doing a PhD was part of a much bigger undertaking that involved two people leaving behind secure careers as solicitors in London, selling up everything and moving with a three year old child to Sydney. For me, that meant returning to somewhere I knew to do something I wanted to do, but for my partner Audrey Pereira, the sacrifices were accompanied by much less certainty. For sharing this part of the journey and providing the love and support that helps such a project succeed, my heartfelt thanks go to Audrey and Kyle. viii Abbreviations and acronyms ABA Australian Broadcasting Authority ABC Australian Broadcasting Corporation ABS Australian Bureau of Statistics ACM Australasian Correctional Management ADF Australian Defence Force AFP Australian Federal Police AG Australian Government A-GD Attorney-General’s Department (Commonwealth) AGPS Australian Government Publishing Service AHRC Asian Human Rights Commission AI Amnesty International AJA A Just Australia ALP Australian Labor Party ALR Australian Law Reports AMSA Australian Maritime Safety Authority ANAO Australian National Audit Office APC Australian Press Council APDHA Andalusion Human Rights Association (translated) APS Australian Protective Services ASEAN Association of South East Asian Nations ASIO Australian Security and Intelligence Organisation ASRC Asylum Seeker Resource Centre BBC British Broadcasting Corporation BG Budapest Group ix BWCC Brisbane Women’s Correctional Centre CC Carnegie Commission CCR Canadian Council for Refugees CEC Commission