Juridical exceptionalism in Australia: Law, Nostalgia and the Exclusion of ‘Others’

By Peter W Billings. Published in full in the Griffith Law Review.

Abstract
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. Continue reading

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Afghanistan

Afghanistan is a major source country for asylum seekers and refugees globally, not only for Australia. UNHCR estimates that there are three million Afghan refugees worldwide; this constitutes one in three of the world’s displaced persons.[1] This number is rising with 33,500 Afghani’s making claims for asylum in 2010.[2] Civilians in Afghanistan face three major push factors: general violence and conflict, abuse at the hands of Afghan security forces, in addition to the plight of ethnic minority Hazaras.

Although Afghani’s constituted the highest number of asylum applications in Australia[3] they only counted for a fraction of total asylum claims worldwide. The figures below detail the asylum claims received over the 2010- 2011 period, up to and including June 2011. The majority of Afghan asylum seekers have been found to be genuine refugees. Even if applicants were rejected in the first stage of application to DIAC, up to 86% of those decisions were overturned upon review by either the RRT or the alternative ‘privatised’ system of IMR set up for irregular maritime arrivals (those arriving by boat without valid entry visas) who are processed as ‘offshore entry persons’ (see data below). Continue reading

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August 2011

Welcome to our new and improved Asylum & Refugee Law blog!

Each month, our new team of writers from the University of Queensland will update you on court decisions, developments around the world, and provide analyses on refugee and asylum matters.

This Month:

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Update: Immigration Detention

What is Mandatory Detention?

Mandatory detention is the practice of compulsorily detaining or imprisoning people seeking political asylum.

Mandatory detention in Australia is, in practice, limited to only those asylum seekers who apply for refugee status at the border. Other unlawful non-citizens, such as onshore processed asylum seekers who arrive by plane with appropriate documentation, are generally granted bridging visas and released into the community pending the outcome of their claim. Accordingly, the application of the law is inconsistent and provides a legal basis upon which people arriving by boat are found prima facie ‘unfit’ to live freely amongst those in the community. Continue reading

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Recent Refugee Flows

Libya

The unfolding events in Libya have had major consequences upon the population. It has been estimated that currently 3 million people have been affected by the conflict, including 218,000 internally displaced persons (IDPs) and 860, 900 people (192,000 Libyans) forced across the border.[1] In May, Italian maritime authorities were conducted a rescue mission for 500 Libyan refugees whose boat had hit rocks just off the coast[2]. The vast majority of Libyan refugees have sought asylum in Europe and Italy in particular, which already received thousands of Tunisian refugees earlier this year.[3] However, as the situation in Tunisia stabilises, the Tunisian government has established refugee camps for Libyan refugees (mostly in Choucha), although many Libyan refugees are opting to return home due to poor conditions[4].

Continue reading

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Shifting the Asylum Debate: What of ‘Push Factors?’

In 2010 a total of 845,800 asylum claims were lodged worldwide; of this amount South Africa received 180,600, the United States received 54,300 and France received 48,100.[1] Australia received 5,873 asylum claims.[2] Despite the relatively few asylum seekers that Australia receives, the issue is a political hot topic.

The current debate regarding asylum seekers has focused primarily on so-called ‘pull factors’; the reasons why people are seeking asylum specifically in Australia and how policy can “break the people smuggler’s business model”[3]. The government has repeatedly implemented policies aimed at deterring asylum seeker arrivals. From the Howard government’s Pacific Solution[4] to more recent developments- the Malaysia Solution[5] and the proposed re- opening of Manus Island detention facility in Papua New Guinea[6]– Australian policy has essentially aimed to make Australia appear an undesirable destination for irregular maritime arrivals.

However, there has been a severe lack of political recognition of ‘push factors’; understanding why people are forced to flee their country of origin and seek asylum in another. Regardless of an asylum seeker’s mode of arrival, desperate circumstances compel individuals and families to flee their home. The government can implement as many hardline, vote- grabbing policies as possible but the fact remains that whilst there is oppression and conflict in the world, asylum seekers will exist.

Listed below are the top ten countries of origin from which Australia receives asylum seekers. The purpose of this component of the digest will be to detail the issues within these countries that would force people to flee. This is not simply a humanitarian perspective designed to evoke empathy, but a practical look at why there is mass displacement around the globe and how the human consequences arrive on Australia’s doorstep.

Top 10 Populations of Origin of Asylum Applicants to Australia 2010

Country of Origin Total Number Percentage
Afghanistan 1,262 21.49%
China 1,180 20.09%
Sri Lanka 585 9.96%
Fiji 545 9.28%
Islamic Rep. of Iran 459 7.82%
Pakistan 433 7.37%
India 408 6.95%
Iraq 379 6.45%
Egypt 328 5.58%
Zimbabwe 294 5.01%

Data compiled from United Nations High Commissioner for Refugees. 2011. Asylum Levels in Industrialised Countries 2010. Division of Programme Support and Management.

Next Month, we’ll be looking at Afghanistan.

Danielle McKeen


[1] UNHCR. 2011. Global Trends 2011. Division of Programme Support and Management.

[2] United Nations High Commissioner for Refugees. 2011. Asylum Levels in Industrialised Countries 2010. Division of Programme Support and Management.

[3] Prime Minister Julia Gillard, quoted in a radio interview with Sabra Lane, AM, 23/08/2011.

[4] See Human Rights Watch. 2002. ‘By Invitation Only: Australian Asylum Policy’; Magner, T. 2004. ‘A Less than ‘Pacific’ Solution for Asylum Seekers in Australia’ International Journal of Refugee Law, 16(1): 53- 90.

[6] See Amnesty International, 20 August 2011. Manus Island ‘as bad as Nauru’; ABC News, 23 August 2011. Rights group slams Manus Island deal.

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Plaintiff M61/2010E v Commonwealth; Plaintiff M69 v Commonwealth

In late 2010, the High Court considered the legality of Australia’s ‘offshore’ refugee processing regime on the basis of claims brought by two Tamil asylum seekers known as M61 and M69. This historic case has, as expected, received a lot of media attention.

The Asylum and Refugee Law Project has prepared a case report explaining the background, key issues, and consequences of the decision. It is possible to access the full text of the High Court’s judgment here.

In response to the decision, the current Minister for Immigration, Chris Bowen, announced changes to the manner in which irregular maritime arrivals are processed at offshore excised places. The new ‘Protection Obligation Determination’ process was introduced on 1 March 2011.

Happy reading!

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