Australia’s refugee crisis and the normality of exception

Nikita Simpson
August 17, 2014

Tamil asylum seekers in Australia are apparently taught to use these orange lifeboats on the journey back to India, Source:

On the 13th of June 157 Tamil asylum seekers board a boat in  Pondicherry, India bound for Christmas Island. On the 26th of June the  boat develops an oil leak. On the 27th of June the first reports emerge  in the Australian media that such a boat exists. Prime Minister Tony  Abbott refuses to confirm these reports. On the 29th of June the boat is  intercepted 27km from Christmas Island in the contiguous zone and all  on board are transferred to the ACV Ocean Protector and held in  windowless rooms. On the 1st of July the National Security Committee  decides to send the group back to India to be delivered to the Sri  Lankan Navy without any kind of reception or attempt to process claims. The customs ship arrives near India and the asylum seekers are  instructed as to how to use orange lifeboats to navigate to shore. On  the 7th of July an urgent hearing in the Australian High Court is  called, where Justice Susan Crennan rules against the transfer of the  asylum seekers. The government for the first time acknowledges the  existence of the boat. On July 25th the Guardian Australia reports that  the group will be taken to the Cocos Islands for off-shore processing  before being taken to Curtin detention centre in Western Australia,  where they arrive on the 27th of July. They were directed to speak to  Indian consular officials while at the centre to help confirm their  identities, but supposedly refused contact – the government calls this a  ‘humanitarian plan’. On August 2nd the asylum seekers are secretly  transferred to Nauru detention centre overnight without the knowledge of  their lawyers.

Here we have a timeline of events that I have watched unfold over my  past month in Australia. What is sickening is that I have seen this  sequence develop time and time again throughout my adolescence. Reports  of boat identified in waters surrounding the Great Southern Land.  Government dispatches array of institutional enforcement bodies to  suppress risk and brandishes around words like ‘sovereignty’ and  ‘jumping the queue’. Public outcry and support come like a wave. Public  looses interest and asylum seekers are lost into the system of mandatory  detention.

So where the 157 Tamil refugees now? They are detained in Nauru to  await processing where they will remain for an average of 523 days.  Scott Morrison, Australia’s current Immigration minister, assured the  public – “What the people smugglers and anyone they are trying to get on  a boat need to understand is that this Australian Government will take  the actions necessary to protect Australian sovereignty and stop the  boats.” These are the same words echoed throughout the history of  Australian immigration policy. The words of past Prime Ministers  Keating, Howard, Rudd and Gillard. The measures they used to fulfil this  promise becoming increasingly dire, increasingly censored and  increasingly ignorant of their commitment to international treaties that  uphold human rights and humanitarian responsibility.

The current version of government immigration policy is perhaps the  most explicitly fearmongering yet. Officially called ‘Operation  Sovereign Borders’ (OSB), it is was election policy of the Abbott  Campaign that commenced on 18 September 2013 following his success in  the federal election. In a nutshell, OSB combines multiple government bodies under the command of three star general, Angus Campbell.  Officially it is defined as a “”military-led border security operation  supported and assisted by a wide range of federal government agencies”.  It involves three regional task groups – an navy fleet of customs boats  to stop the hoards, a battalion of Federal police foot soldiers infiltrating Indonesia and PNG to weed out people smugglers and the  faithful bureaucrat from the Immigration Dept dealing ‘fairly’ with the  illegal alien. Specifically targeting people smuggling, it promises to  ‘stop the boats’, and that it has done. But, despite all the pomp and  power, we don’t quite know how.

As the table shows, the boatload of Tamil asylum seekers was the first  arrival since December. But does this mean they’re not coming, or just  that we don’t know about them? Alongside the arsenal of anti-refugee  forces, Scott Morrison also introduced a series of censorship policies.  The government no longer releases information on asylum seekers as they occur, instead it was meant to hold a media briefing every week. When in  January 2014 this had not occurred for a month, the minister announced  that such briefings would only be published on a needs basis from now  on. To compliment this, the government increased the cost of  Journalistic visas to Nauru, a key site for Offshore detention, from  $200 to $8000.

It seems quite obvious to me that the government has no inhibitions  in creating a culture of secrecy surrounding immigration policy. There  is no attempt to be democratically accountable to the public. In fact,  the clandestine nature of the operation not only allows them to  arbitrarily extend and abuse the law, but it also helps to proliferate a  romantic imaginary of a devious enemy that is being  heroically-quashed-by-brave-Australian-men-and-women-preventing-the-  siege-of-our-nation-by-illegal-aliens-who-could  infiltrate-our-communities-  corrupt-our-children-and-generally-bring-on-the-apocalypse. The  government is buying into a different discourse of accountability by  brandishing around the term ‘sovereignty’.

So what does the word ‘sovereignty’ allow us to do? Political  Philosopher Carl Schmitt argues that the sovereignty of a nation is  determined by their ability to create the ‘state of exception’ in which  authority both creates and enforces the law. By definition, this also  allows the state to initiate a space of ‘exception’, in which the law can suspended.

In the case of the Australian asylum seeker policy, we can see that  the very category of the asylum seeker is outside the functioning of  normal law. Schmitt was writing in response to WWII and the human rights  abuses of the Nazis, and I should like to think that ‘total suspension  of law’ is not quite what follows from the creation of the ‘exceptional  asylum seeker’. Instead, it is not that the exception is not subject to  laws, but that it is a space where law that already exists can be  extended arbitrarily. Hussain argues in his analysis of Guantanamo Bay  and US Terror policy, that his is because exception was used  traditionally as a means of temporarily suspending law in order to  respond to crisis. But when the crisis becomes the norm – as of both the  War on Terror and the ‘War on Refugees’ – then the exception is not  distinguishable from everyday practice anymore.

Hussain tracks the explosion of anti-Terror laws in post-9/11 America  and their normalisation to show the increasing impingement of the  government on Human Rights and civil liberties. In the same way, we can  track the history of Immigration policy in Australia in three waves.  Between 1976-81, Australia experienced its first significant wave of  refugee arrivals by boat. Fleeing the Vietnam war, the first waves of  refugees were received with sympathy and their claims were processed  quickly. However, throughout the 1980s a second wave of primarily Middle  Eastern arrivals induced fears of unemployment and ‘jumping the  immigration queue’. In 1989 the government introduced the Migration  Legislation Amendment Act that allowed officers to arrest and detain  anyone who they deemed an ‘illegal entrant’; complimented by a policy of  discretionary administrative detention onshore.

In 1992, though detention was meant to be a ‘temporary’ measure for a  particular cohort, the Keating government extended Immigration policy  through the Migration Amendment Act to make detention mandatory, making  Australia (to this day) the only country to have mandatory detention for  asylum seekers. This laid the groundwork for Howard’s physical removal  of refugees from the Australian mainland through his 2001 Pacific  Solution. Between 1994 and 2001 Australia received a third wave of  approx 9,500 boat arrivals predominantly from the Middle East. Howard  responded with the Migration Amendment (Excision from Migration Zone)  Bill 2002 effecting a policy of offshore processing. In this policy,  Christmas Island, Ashmore and Cartier Islands and the Cocos Islands that  were excised from Australia’s migration zone. This meant that asylum  seekers on these territories were not able to make valid claims for a  visa in Australia, but were instead transferred to detention centres on  Nauru and Manus Island (PNG). We can track the normalisation of offshore  processing though the Gillard Malaysia solution and up to Morrison’s  OSB.

This look back through history shows us the insidious extension of  the law as applied to asylum seekers, leading immigration policy down a  path of increasing xenophobia. The state of exception as applied all the  way back in the 1970s became the norm and then went beyond in  increasing attempts to stabilise the sovereign borders. As poisonous gas  seeps in to lull the senses, each policy gave way to one more  exclusive, and lessened the blow for the next as the phantasmic figure  of the refugee becomes more threatening.

But fearmongering about the state is old hat. We all know about the atrocities Regan facilitated in Nicaragua. We’ve all read the Snowden files. We know about the Stolen Generation  of Indigenous Australian. States commit crimes against their people.  Full Stop. But what is different about immigration policy is how  vigorously supported it is by the public of the day and how easily they  forgot humanitarian concerns. This is because the discourse of  accountability that the state buys into through the use of the term  ‘sovereignty’ is a moral one that targets the vulnerable identity of the  Australian nation and makes the non-Australian dispensible. Hence,  concerns about ‘human’ rights become subsumed by citizen’s rights. The  law is instrumentalised to protect in the name of this identity and  hospitality quickly descends into hostility.

Within this alternative discourse of accountability, where human  rights such as that to freedom from arbitrary detention and freedom of  movement no longer apply, then how can we voice our concerns?

By using the same kind of moral discourse. This week psychiatrist Dr  Peter Young who has visited the Manus Island detention centre gave  evidence at a national inquiry into children in Immigration organised by  the Australian Human Rights Commission. Dr Young likened the conditions  that children were in to torture, and cited evidence of neglect of  children’s mental health.

“If we take the definition of torture to be the deliberate harming of  people in order to coerce them into a desired outcome, I think it does  fulfil that definition,” he told Guardian Australia. “It has  characteristics which over time reliably cause harm to people’s mental  health. We have very clear evidence that that’s the case.” This has  propelled a moral panic about the conditions of children in detention.  By focusing on the plight of children in detention, perhaps we can begin  to bare witness to the exception that our government has created. This  allows us to turn the phantasmic illegal aliens into real human being  with real rights that need to be protected. It makes the facade of  normality that surrounds the space of the detention centre fall away. It  hopefully wakes Australia up from the slumber that has legitimated the  loss of dignity of so many asylum seekers.


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Nikita Simpson