By Peter W Billings. Published in full in the Griffith Law Review.
Federal government interventions designed to address irregular maritime arrivals and living conditions in particular Indigenous communities in the Northern Territory (NT), have been characterised by juridical exceptionalism – the partial suspension of the juridical order. Perceived emergencies, broadly border (in)security and physical (in)security, have resulted in the creation of legal spaces in which ‘Others’ are constitute within and without the juridical order by the sovereign. This article critically explores these exceptional spaces – ‘offshore excised places’, immigration detention centres and ‘prescribed’ parts of the NT – and examines the ethical, political and historical rationalities underpinning them. Crucially, this includes consideration of how social memories have influenced the regulation of irregular maritime arrivals and the creation of emergency response laws in the NT. It is argued that social ‘governmental’ memories about the efficacy and legacy of law/policy responses to border insecurity and the socio-economic problems facing Indigenous communities have, to a degree, been infected by nostalgia. This yearning for the restoration of past experience is associated with a sense of loss, including: a loss of state sovereignty due to irregular maritime arrivals, a loss of control over (conditions in) Aboriginal communities, and a loss of national unity and identity. This longing has activated politician’s ‘retro’ ideas and the refashioning of legal responses to current social dilemmas, arguably such strategies risk discounting or excusing the failings of past social policies leaving individuals to bear the adverse effects once more.