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As one of the countries which is ratifying the 1951 Refugeee Convention and the 1967 Protocol, Australia has an obligation to protect refugees and guarantee their rights as stated in the provisions. With the issuance of the Pacific Solution Policy by the Australian Government to restrict refugees who come to Australia, Australia has reneged on international treaties on the protection of refugees that have been ratified. Based on the results of normative juridical research which is used in this paper, it can be seen that the state sovereignty principle which is used as the legal basis for implementing the policy cannot necessarily erase the obligations that have been imposed on it, especially with the development of the current understanding of the state sovereignty principle that links human rights protection. In addition, the attachment to international agreements that have been agreed based on the principle of Pacta Sunt Servanda becomes the basis for strengthening legitimacy that the Australian Government can be held responsibility in connection with the implementation of the Pacific Solution Policy in the handling of refugees in Australia.

The Australian-funded and operated immigration detention centre on Manus Island, Papua New Guinea, serves as a frontline for Australia’s border policing measures against unauthorised refugees. The willingness of the Australian state to forcibly transfer and detain refugees at sites such as Manus Island reflects its commitment to deterring unauthorised arrivals by punishing them for their methods of travel. Comparing the outcomes of the 2016 refugee global summits and recent public inquiries into the conditions on Manus Island, this article considers the disconnect between Australia’s criminogenic border policing practices and its supposed commitments to a humanitarian refugee resettlement policy. It argues that the dominant view of resettlement as an outcome to be bestowed on ‘worthy’ refugees removes refugee agency and enables ongoing and systemic human rights abuses at sites such as Manus Island. For refugees this can only be resolved by establishing a right to free movement.

This thesis examines the important role that humanitarian arguments played in influencing the trajectory of Australia’s asylum seeker policy during the Prime Ministerships of Kevin Rudd and Julia Gillard (2007 – 2013). In the leadup to the 2007 Federal Election, Rudd declared that Australia had a moral obligation to treat asylum seekers with compassion because the ‘biblical injunction to care for the stranger in our midst is clear.’ During his first year in office, Rudd largely fulfilled his promise to comply with the ‘letter and the spirit’ of the Refugee Convention by ending offshore detention on Nauru and Manus Island, abolishing Temporary Protection Visas (TPVs), and declaring that mandatory detention would only be used as a ‘last resort.’ However, by 2013, Labor’s humanitarian platform on Irregular Maritime Arrivals (IMAs) had been largely abandoned. Faced with a significant increase in boat arrivals, an overburdened immigration detention system and an increasingly hostile public, both Rudd and his successor Gillard responded by gradually reintroducing the punitive measures that had comprised the Howard Government’s Pacific Solution. In order to ascertain why Rudd’s attempt to take Australia’s asylum seeker policy in a more humanitarian direction was unable to be sustained, I will undertake a normative analysis of the language that both Labor and the Coalition used in order to legitimate their respective asylum seeker policies during the Rudd/Gillard era. I argue that while the abovementioned factors did play a crucial part in prompting Labor to repudiate its humanitarian stance on IMAs, it was the Coalition’s strategic use of compassion rhetoric that enabled Opposition leader Tony Abbott to de-legitimise both pillars of Rudd’s ‘hardline and humane’ policy. In particular, the so-called ‘drownings argument,’ which drew direct parallels between rising numbers of IMA deaths at sea and the Rudd government’s policy changes, fortified the Coalition’s argument that stronger border protection measures were necessary in order to ‘save lives’ by preventing IMAs from undertaking the perilous sea voyage to Australia. In order to provide a comprehensive response to the research question, I developed a discourseanalytical conceptual framework that incorporates insights from the constructivist literature on Critical Norm Research (CNR). One of the key findings is that the domestic ‘meaning-in-use’ of international asylum seeker norms has not remained constant, but has rather evolved in response to agent-driven, structural and context-specific changes in Australia’s socio-political environment. By demonstrating that Labor’s humanitarian platform on IMAs significantly altered the discursive parameters of the asylum seeker debate during this period, this thesis therefore aims to make an original contribution to both the empirical literature on Australia’s political response to boat arrivals and the theoretical literature on norm contestation.

Since 2013, the Nauru government has undermined democracy by reducing the independence of the judiciary, treating opposition MPs as potential traitors, curbing freedom of speech and restricting visits by variously defined groups of people who include journalists, Australians and New Zealanders. New Zealand responded by suspending its aid to Nauru’s justice and border control department. Australia, by contrast, has said little. The Nauru government would not have acted so boldly in curbing civil freedoms and weakening the rule of law if Australia had been less dependent on its goodwill to act as host for Australia’s Regional Processing Centre, which houses asylum seekers who have attempted to reach Australia by boat. Australia’s reliance on Nauru – driven by urgent domestic political considerations – has fostered an atmosphere where the principles of good governance can be flouted with little fear of significant criticism from Canberra.

As part of its efforts to deter the arrival of asylum-seekers by boat to Australia in 2001, Prime Minister John Howard’s Coalition Government established the offshore processing of refugee claims. Known as the Pacific Solution, this policy included an agreement with Nauru and Papua New Guinea’s Manus Island for asylum-seekers arriving to Australia by boat to be transported to either of these islands where they would wait in camps while their refugee claims were processed. The majority of the asylum-seekers subjected to offshore processing at this time were held on Nauru, and most had fled Afghanistan. Governmentality, as introduced by Michel Foucault and developed by later scholars, provides insight into the institutions, methods, techniques, strategies, and tactics used by governments to achieve its ends. This article explores Australian Government policy and the experience of Afghan asylum-seekers held on Nauru from 2001 using a governmentality approach. Given that people seeking asylum in Australia are once again being transported to Nauru and Papua New Guinea, this time initiated by a Labor Government and continued by the current Coalition Government, this article’s findings are pertinent for insight into under- standing current Australian policy.

Australia’s punitive border policing regime, aimed at deterring asylum seekers attempting unauthorised entry into the country, was ratcheted up even further in 2013 by the former Labor-led government and its successor (as of September 2013), the Liberal National Party Coalition. In effect, under the guise of combating ‘people-smuggling’, and a pledge to ‘Stop the Boats’, policies such as the mandatory detention of unauthorised arrivals and the use of off-shore detention facilities have been made even more draconian. Now the aim is to block entirely any right to resettlement or residence for refugees in Australia itself, using the weaker and poorer states of Nauru and Papua New Guinea, historically under Australia’s control, to act – to their own long-standing detriment – as detention and resettlement centres, for increasing numbers of migrants.

The Australian government policy of mandatory immigration detention has been the subject of critique by human rights bodies and civil society. With many immigration detention facilities being located in remote sites, distance and expense means that few people get to observe detention practices in Australia directly. Through direct observations and through the voices of three men detained in the Curtin Immigration Detention Centre outside of the remote Western Australian town of Derby, the human costs of mandatory detention are presented and discussed. This is done through positioning this discussion as part of the process of bearing witness to mandatory detention in Australia.

This article explores the phenomenon of asylum seekers and irregular migrants presenting as 'boat people'. We evaluate key aspects of policies introduced to deter and contain these people - namely mandatory detention, temporary protection visas and offshore processing. Given the high rate of deaths and injuries associated with unauthorised boat arrivals, we argue that governments should do their best to discourage or prevent people from attempting to enter Australia in this way. However, the available evidence suggests that the rationale underlying deterrent policies is inherently flawed. Most have been totally ineffective in stopping unauthorised boat arrivals. History suggests that the best strategies prevent rather than deter, stopping the flow of asylum seekers at source and/or diverting desperate people away from dangerous and irregular modes of transport. We argue that no Australian government, acting alone, will be able to beat the people-smugglers now plying their trade out of Indonesia. What is needed are cooperative arrangements with 'source' or transit governments, coupled with targeted resettlement programs to provide refugees with viable protection options. We challenge claims made about the effectiveness of the Howard government's Pacific Solution and question Labor's apparent acceptance that offshore processing in 'regional' centres will stop the boats. We ask whether the Conservatives' loud and internationally publicised claims that Labor has 'gone soft' on border control represent part of the problem: 'loose lips' may indeed be bringing the ships.

The extent to which the Pacific Solution and other refugee policy developments under the Howard government were contested within Canberra circles will not be known until cabinet files are opened many years hence. However, if recent research into the White Australia policy is anything to go by, the files may shed unappreciated nuance on the context and reasoning behind such developments. We cannot pre-empt this research, but we can explore documents to which we do have access to deepen insight into Australia's refugee policy foundations, and to prepare the ground for more informed assessments of recent developments. Using archived policy files, this article examines the internal debates that surrounded Australia's accession to the 1951 Convention and 1967 Protocol relating to the Status of Refugees. The picture that emerges challenges simplistic assessments as to the motives of policy makers of the time. It also shows how different government departments—in this case Immigration and External (now Foreign) ...

The closure of the immigration detention facility on Nauru by Australia's new Labor government marked the end of one of the most abusive symbols of the Howard government's ‘Pacific Solution’. Howev...

Almost six years on from the introduction of the Pacific Solution, the commitment of Australia's federal government to the regime of offshore processing of asylum seekers appears undiminished. The ...

The paper provides an overview of the development and implementation of Australia’s comprehensive ‘border protection’ policy, including the Pacific Solution and Operation Relex – the interdiction of asylum seekers. The intention of the paper is to demonstrate the lengths to which a developed state will go in addressing the interrelated problems of secondary movement, people smuggling and mixed flows. It also highlights the ‘export value’ of the policy and its wider implications.

The Australian Government's ‘Pacific Solution’ which prohibits asylum seekers from entering Australia's migration zone and applying for refugee status raises a number of legal issues. This article ...

It is a precarious task to periodise a Court that is stillwriting its own history. This chapter recognises the difficulties inherent in this task, but attempts cautiously to undertake it. It analyses the High Court between the appointment of Robert French as Chief Justice by the Rudd Labor Government in September 20081 and the re-appointment of Kevin Rudd as Prime Minister in June 2013. This was a period of significant instability in the federal government, including the replacement of Rudd by Julia Gillard as Prime Minister due to a change of leadership in the Australian Labor Party (ALP) on 24 June 2010, followed by a period of minority government for Gillard after the federal election on 21 August 2010, and then Gillard’s deposition as ALP leader and Prime Minister by Kevin Rudd on 26 June 2013. This chapter addresses the relationship between the High Court and mainstream political opinion in three sections. The first section focusses on the innovative decision-making of the Court and the relative paucity of concomitant critique of its decision-making within the media and public discourse. The second part focusses on the ways in which cases decided by the French Court highlight its shifting role as a majoritarian and countermajoritarian institution. We analyse the prevalence and impact of various understandings of majoritarianism - public opinion, elite opinion, partisanship, and legislative majorities - in the context of cases concerning public health and immigration selected for their political saliency in relation to government policy.

This article analyses the border policies of australia's federal Labor governments between 2007 and 2013. It argues that the policies of externalization pursued by Labor inevitably led to the restoration of the Pacific Solution introduced by the previous Liberal-National Party Coalition government and reproduced similar forms of state criminality and resistance.

In early 2002 the minister of state for immigration, Lord Rooker, reportedly answered a blunt ‘no’ to the question of whether there existed any legal avenues by which legitimate refugees might enter the UK. Matthew Gibney A scandal for postcolonial studies To begin with, two scenes (see Figures 1 and 2). A silhouetted figure flees an on-rushing jeep. He darts off-road towards a steep, dusty slope, and a tall metal fence marking the border between the US and Mexico. The man – an irregular Mexican migrant – is on the US side, and is attempting to evade a US border patrol vehicle by returning to the border he has just crossed. Writing of this image, a photograph by Sebastiao Salgado, Salman Rushdie makes a claim for the migrant as a seminal figure: ‘for Salgado, as for myself, the migrant, the man without frontiers, is the archetypal figure of our age’. More afraid, as Rushdie says, ‘of the men bearing down on him […] than of the impoverished life he thought he had left behind’, the running man is attempting to ‘unmake his bid for freedom’. The image provokes questions for Rushdie about the freedoms such border protection measures are designed to preserve, and acknowledges the ‘hierarchy of mobilities’ that characterizes the globalized world. The man's decision to flee to the border is the false agency of the global poor – the impression of choice where none really exists.

How do you stay open to business and closed to people? Easy. First you expand the perimeter. Then you lock down. Naomi Klein The colonization of the in-between In ‘Reflections on Exile’, Edward Said insists on a distinction between the prominence of exile as a modernist trope, and the current ‘age of the refugee, the displaced person, mass immigration’. The difference is principally one of scale; but it is also marked by advances in the possibilities of violence and imperial territorial ambitions such that now ‘exile cannot be made to serve notions of humanism’. Rather, the asylum seeker is a trope of the infrahuman. Said's compelling reminder of the devastation that can accompany displacement is an important counterpoint to the postcolonial emphasis on diaspoetics, but it presupposes a division between the early twentieth-century exile and the contemporary refugee (or asylum seeker) that occludes the heritage of colonial infrahumanity in the contemporary camp dispositif . In this chapter I will examine two key strategies of sovereign power in relation to asylum seekers: sovereignty's appropriation of the interstitial tactics advocated by postcolonial diaspoetics and the presuppositional strategies by which sovereign law presents itself as always anterior in its relation to life. Both, I argue, are key features of the operation of the camp dispositif and have their roots in the tactics of imperialism. First I will demonstrate how the emphasis on extra-territorial processing in the UK and Australia at the turn of the twenty-first century indicates sovereignty's contemporary facility with processes of deterritorialization as a means of consolidating territorial authority.

David Isaacs has been to Nauru and seen the suffering among detainees in Australia’s off-shore immigration centre In 1992 Paul Keating’s Labor government of Australia introduced a controversial policy of mandatory detention of asylum seekers to help cope with rising numbers of Vietnamese, Chinese, and Cambodian refugees. In 2001 John Howard’s Liberal government introduced the “Pacific solution,” which involved excising some islands from the mainland so that they no longer constituted Australian soil and transferred some asylum seekers, who had arrived by boat, to detention centres on the tiny Pacific island of Nauru and later also on Manus Island in Papua New Guinea.1 Some asylum seekers have been sent to detention centres on the mainland. The average time spent in detention before applications for refugee status are processed has lengthened progressively and is now well over a year.2 People seeking asylum in Australia are not told when their applications will be processed, so detention is indefinite—a truly Kafkaesque situation. Strong evidence shows that the harsh conditions under which children and adults are held, particularly on Nauru and Manus, as well as uncertainty about their fate, are highly detrimental to mental health.3 4 The Australian Human Rights Commission’s inquiry examined the …

For fourteen years Australia has detained asylum seekers arriving unlawfully in its territory. It also intercepts asylum seekers arriving in the territorial waters, detaining them in third countries and preventing them from seeking refugee status in Australia (the “Pacific Solution”). This paper traces the development of the policy, its current implementation, the justification employed by the government for maintaining it, and its legality under international law. On examination of these issues, it is evident that the justification for the mandatory policy is flawed; that the costs of the policy – in terms of the physical and mental well-being of asylum seekers themselves, and the social and financial impact on the Australian community – are too great, and it puts Australia in breach of its obligations under international law. However, the government has not canvassed alternatives to the mandatory detention policy and has no intention of changing it. This leaves asylum seekers who enter Australian territory unlawfully literally and figuratively between a “rock and hard place.”

Three defining events have shaped public policy in Australia towards the "war on terrorism." The September 2001 attack on New York was obviously the first. This prompted legislation in the following year that expanded the powers of the main intelligence body, the Australian Security and Intelligence Organisation (ASIO), and expedited its move from intelligence collection to security operations. The second was the bombing attacks in London in July 2005, which shifted the emphasis from immigration control to domestic vigilance. The third was the major race riot at Cronulla, Sydney in December 2005. This alerted authorities to the deterioration in ethnic relations created by these previous events and led to increased penalties against violence. No terrorist attacks have happened in Australia. Only a handful of arrests have been made, most awaiting trial. Loss of life has been confined to the Bali bombing of October 2002, which was not directed specifically against Australians. This resulted in greatly improved cooperation between Indonesian and Australian security and police, something that had started to develop in response to the prevention of unauthorised asylum seeker arrivals, most of whom came through Indonesia. Thus the major policy shifts were from border protection to internal security. But the public debate was more concerned with immigration, multiculturalism, and the integration of the Muslim population. Both the 2001 and 2004 elections were fought essentially on security, to the advantage of the ruling Liberal-National coalition led by John Howard.PLANNED, SELECTIVE, AND CONTROLLED IMMIGRATIONThere is nothing random about Australian immigration. Everyone entering for whatever purpose must have a visa, with the exception of New Zealand citizens. New Zealanders receive a nominal visa on arrival. Others arriving without a valid visa may be returned to their place of origin or given a "bridging visa," which allows them to remain while their status is determined. Those seeking asylum under the UN convention and protocol on refugees (1951/1967) will also be given a bridging visa if they arrive on another visa. If they have no visa, they are mandatorily detained until their status is determined. This has been the case since 1993.1Those asylum seekers arrested at sea were often deported to two Pacific Islands (Nauru and Manus) under the now suspended "Pacific solution" of 2001-02 Refugees and humanitarian settlers are processed overseas mainly through the UN high commissioner for refugees or by Australian migration posts. Ideally, then, nobody enters Australia other than in transit without the permission of the Australian government. If they do, they are interned. This was clearly stated by Prime Minister John Howard during his victorious 2001 election campaign: "We will decide who comes to this country and under what circumstances." While this implicitly breached the UN convention of which Australia is a signatory, the principle of national sovereignty has been rigorously asserted ever since. This was easily sustained. Regular passenger access to Australia is now exclusively by air and there are fewer than 20 regulated points of entry.3This tightening of admission criteria follows a long history of planned and financially assisted immigration (1831-1982) that allowed Australian authorities to select those immigrants they favoured. Steadily over the years, the visa system was extended until it became one of the tightest in the world. But state intervention also involved actively encouraging immigration, usually with financial inducements such as paid or subsidized passages. Just as few other developed societies so rigidly imposed visas, so no other so generously encouraged those it wanted to settle. This degree of state control is not fully understood in Australia even now. In public debates that break out from time to time, many seem to think that anyone can come to Australia. This is far from being the case. …

Following a rise in the number of irregular maritime arrivals seeking refugee protection in Australia, and two successful legal challenges to their refugee processing policies, the Labor Government has resuscitated notorious aspects of the ‘Pacific Solution’ as part of a ‘no advantage’ policy. This strategy seeks to deter ‘irregular’ asylum seekers by treating them no more favourably than refugees seeking protection from overseas awaiting entry to Australia through regular refugee/humanitarian channels. In furtherance of this ‘no advantage’ policy, extra-territorial processing on Nauru and Papua New Guinea has been re-introduced and ‘excision’ provisions are to be extended to mainland Australia placing the continent outside of its ‘migration zone’ and, therefore, asylum seekers beyond the regular laws and processes for protection seekers. This article analyses the seismic shifts in asylum seeker policy that have occurred in Australia over the recent past and the politics underpinning them.