Australia’s refugee crisis and the normality of exception

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.

PastedGraphic-1 KopieAs 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.




Nikita Simpson is an undergraduate student in Social Anthropology at Kings College. She is beginning her research on Women’s Rights and the Law in contemporary India.




The column: Terra Nullis

Terra nullius is a Latin expression deriving from Roman law meaning “land belonging to no one”, which is used in international law to describe territory which has never been subject to the sovereignty of any state. This column explores the ‘no ones’ and why they are subject to voicelessness and invisibility. It looks at who creates and profits from the ‘no one’ and how the state, how places – the indigenous sign for this is used in the logo – can be reclaimed.

Nikita Simpson is an aspiring anthropologist beginning a PhD on Gender Empowerment Policy in India at the London School of Economics. She also currently works at the SHM Foundation on their Mental Health programme, and is an editor of Kings Review. She tweets at @nikssimpson.