Borders have become commonplace throughout the world. It is taken for granted that a person will usually require a visa and passport in order to travel across borders, and that their identity, personal details and biodata will be recorded. However, borders, and the legislation underpinning them, play a significant role in shaping and controlling both citizens and non-citizens. This essay will attempt to critique border control legislation through the lens of Michel Foucault’s concepts of ‘surveillance’ and ‘governmentality’. As a point of reference, Australia’s Migration Act 1958 (Cth) will be critiqued.
Australia’s geography places it in a unique position to control all immigration and emigration. As it is ‘girt by sea’, all regular entry and exit must take place at either a shipping port or an airport. Section 43 of the Migration Act requires all visa holders to enter via a port, in essence ensuring the monitoring and control of all migration. Failure to do so renders the visa invalid. Australia is also the only country to impose a universal visa requirement for all non-citizens. Non-citizens who are in Australia without a valid visa must be detained until they are granted a visa or are deported, a provision which has resulted in indefinite detention for those who are not granted a visa and who cannot be deported.
Through this system Australia is able to place significant control and surveillance over its borders. This has been further expanded through technologies of surveillance, such as the collection and sharing of biodata with partner countries. In 2004, the Australian Parliament passed the Migration Legislation Amendment (Identification and Authentication) Act 2004 (Cth). This Act amended the Migration Act 1958 (Cth) to allow for the collection of personal identifiers from non-citizens, including fingerprints and handprints; photographs or other images of the face and shoulders; weight and height measurements; audio or video recordings; signatures and iris scans, and other items. This data in shared with other partner nations and cross-referenced to identify any undesirable applicants.
Foucault considered the role that surveillance plays in his book Discipline and Punish. Drawing upon Bentham’s panopticon, Foucault instructs the reader to imagine a prison cell with tall walls and bright lights that allows the prisoners to be watched, without them knowing whether or not they are the subject of such surveillance. The person under surveillance is reduced to ‘a state of conscious and permanent visibility that assures the automatic functioning of power’. This all-encompassing surveillance, without the knowledge of such surveillance, forces the prisoners to become their own guards:
He who is subjected to a field of visibility, and who knows it, assumes responsibility for the constraints of power; he makes them play spontaneously upon himself; he inscribes in himself the power relation in which he simultaneously plays both roles; he becomes the principle of his own subjection.
Foucault notes that this example can be applied, and has been applied, to many populations: patients in a hospital; ‘madmen’ in an asylum; schoolchildren and workers. However, the mass-surveillance of migrants under Australia’s migration system can also be seen in this light. The concept of ‘crimmigration’ can also be applied here – migrants are viewed as potential criminals. The requirements to provide fingerprints and other bio-data, when other Australians do not, places them on a separate category and pre-judges them as criminals. This securitisation of migration is not unique to Australia, but is taking place throughout the global north, and indeed the world.
As explained by Foucault’s panopticism theory, migrants must then regulate their own conduct (e.g. their work or daily life activities) in order to comply with their visa requirements. Further, both citizens and non-citizens are encouraged to ‘dob in’ those who may be in breach of their visa requirements, such as those who are working additional hours than their visa provides. The Department of Immigration and Border Protection provides a specialised dob-in line for this purpose.
In addition, migrants are further categorised and surveilled in accordance with their deemed utility in Australia. Those on a skilled visa, especially permanent visas, are less regulated, while those seeking asylum in Australia are heavily monitored. Not only may they be indefinitely detained if the Minister deems it in the public interest, but those in the community must also adhere to a stricter set of rules of social conduct than other Australians. This is seen in the ‘Code of Behaviour’ which every asylum seeker must sign before being released into the community.
Requirements in the Code of Behaviour include prohibitions on any ‘anti-social or disruptive activities that are inconsiderate, disrespectful or threaten the peaceful enjoyment of other members of the community.’ The Code defines anti-social activities as actions that are ‘against the order of society’, and may include spitting or swearing in public, or other actions that people might find offensive. As Vogl and Methven argue, these requirements characterise asylum seekers ‘as racialised, uncivilised, social deviants who threaten ‘the peaceful enjoyment of other members of the community’ and ‘constructs asylum seekers as potential criminals’. Thus the Code of Behaviour, combined with a constant threat of surveillance leads asylum seekers to constantly monitor and control their behaviour. This type of surveillance and control relates to the second Foucauldian critique of Australia’s migration system – Foucault’s theory of ‘governmentality’.
Governmentality refers to the way a Government exercises control over its population. The example, for instance, of Australia’s asylum policies, can be viewed as a form of power and control, and thus can be critiqued in this light. As discussed, one way of controlling a population is through the politics of fear and securitisation. This dominant securitisation discourse, Bigo explains can be viewed as a form of ‘governmentality based on mistrust and fear of the uninvited other’. A ‘post 9/11 world’ has seen the global north respond to migration with a ‘law and order’ approach.
Governmentality can also refer to the way a people respond to such power. The Australian community in many ways has self-accepted this form of Government power. It is often taken for granted that migrants should be monitored, that detention centres must exist, and that non-citizens represent something to fear. In this way, it is not only migrants who self-perform the role of the guard, but every Australian is said to ‘be alert’ and report ‘security threats’. Such ‘visibility’ in the Foucauldian sense, is played out in the media on a daily basis – through news broadcasts, tabloid papers and popular TV shows such as ‘Border Security’. Through this, the Government is able to shape both the citizen and the non-citizen. Citizens become vigilant border guards while migrants self-regulate their conduct to ensure compliance.
The lens of governmentality also reveals another role that borders and border controls also play in shaping populations. Borders have always sought to define the people group – to include citizens and exclude those deemed undesirable. However, with the increase use of migration legislation, technologies of surveillance and military-led border controls, the demarcation between outsider and insider is more heavily regulated than ever.
Another form of governmentality is the way the Australian Government seeks to regulate and modulate the behaviour of potential asylum seekers. By developing a range of extraterritorial border controls, including offshore processing, boat turnbacks and interception measures, the Government seeks to ‘deter’ those who would seek to claim protection on its shores. Through this, we can see the role that law plays in controlling people’s choices and movements. By making laws that provide harsh deterrent, the law seeks to manipulate people into certain conduct, thereby ‘voluntarily’ choosing not to seek asylum in Australia.
The end goal in this form of governmentality is the Assisted Voluntary Returns, which Australia funds in countries of asylum and transit. By making the Australian route to safety closed off, and by denying any chance of safety elsewhere in the region, asylum seekers and refugees have no other choice but to accepted the offer of assistance to return home. This is conducted under the guise of voluntary choice, yet Australia’s visa system ensures that such recipients of this program indeed have no other choice.
This essay has attempted to critique the way the Migration Act monitors and regulates migrants. In a Foucauldian sense, one can see how border legislation can shape and control populations – both those inside and out. First, the Australian Government performs surveillance on all migrants, by requiring that every person hold a valid visa and collecting biodata on all visa applicants. Second, the Government further monitors asylum seekers by detaining them or requiring them to adhere to a strict code of behaviour. Such example form the growing critique of the inter-relation between immigration law and criminal law, known as crimmigration.
Further, the Australian Government performs its governmentality role by securitising migration and creating fear in the populace. This co-opts citizens to play the role of security gaurds and ensure compliance from migrants. Finally, the Australian Government regulates the compliance of asylum seekers outside of Australia by coercing compliance through a deterrence framework. BY highlighting these forms of governmentality, it provides space for further critique of Australian practices through a Foucauldian analysis.
 Migration Act 1958 (Cth) s 173.
 Savitri Taylor, ‘Offshore Barriers to Asylum Seeker Movement: The Exercise of Power without Responsibility?’ in Jane McAdam (ed), Forced Migration, Human Rights And Security (2008) 94.
 Migration Act 1958 (Cth) s 189.
 Al-Kateb v Godwin (2004) 219 CLR 562 (‘Al-Kateb’); Joyce Chia, ‘Back to the Constitution: The Implications of Plaintiff S4/2014 for Immigration Detention’ (2015) 38 University of New South Wales Law Journal 628.
 Department of Immigration and Border Protection, 2014 – 2015 Annual Report (2015) 51 <https://www.border.gov.au/ReportsandPublications/Documents/annual-reports/DIBP-Annual-Report-2014-15-optimised.pdf>.
 Explanatory Memorandum, Migration Legislation Amendment (Identification and Authentication) Bill 2004 (Cth) .
 Department of Immigration and Border Protection, above n 5, 50.
 Michel Foucault, Discipline and Punish: The Birth of the Prison (Vintage Books, 1977) 200–204.
 Ibid 201.
 Ibid 202–203.
 Ibid 203.
 Michael Welch, ‘The Sonics of Crimmigration in AustraliaWall of Noise and Quiet Manoeuvring’ (2012) 52(2) The British Journal of Criminology 324; Juliet P Stumpf, ‘The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power’ <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=935547>.
 Anthea Vogl and Elyse Methven, ‘We Will Decide Who Comes to This Country, and How They Behave’ (2015) 40(3) Alternative Law Journal 175; Elyse Methven and Anthea Vogl, ‘Regulating Asylum Seeker Behaviour’ (2016) 28(2) Legaldate 8.
 Methven and Vogl, above n 14, 9.
 Vogl and Methven, above n 14, 179.
 Jennifer Hyndman and Alison Mountz, ‘Another Brick in the Wall? Neo-Refoulement and the Externalization of Asylum by Australia and Europe’ (2008) 43(02) Government and Opposition 249, 254; Didier Bigo, ‘Security and Immigration: Toward a Critique of the Governmentality of Unease.’ (2002) 27 Alternatives 63.
 Dean Wilson, ‘Biometrics, Borders and the Ideal Suspect’ in Sharon Pickering and Leanne Weber (eds), Borders, Mobility and Technologies of Control (Springer Science & Business Media, 2006) 88.
 W Walters, ‘Border/Control’ (2006) 9(2) European Journal of Social Theory 187, 198.
 Ishan Ashutosh and Alison Mountz, ‘Migration Management for the Benefit of Whom? Interrogating the Work of the International Organization for Migration’ (2011) 15(1) Citizenship Studies 21; Emma Larking, ‘Controlling Irregular Migration in the Asia-Pacific: Is Australia Acting against Its Own Interests?’ (2017) 4(1) Asia & the Pacific Policy Studies 85; F Webber, ‘How Voluntary Are Voluntary Returns?’ (2011) 52(4) Race & Class 98; Anne McNevin, Antje Missbach and Deddy Mulyana, ‘The Rationalities of Migration Management: Control and Subversion in an Indonesia-Based Counter-Smuggling Campaign’ (2016) 10(3) International Political Sociology 223.